Baker v. State
In Baker v. State, Trooper Flaugher obtained a phone number from a rape victim's cell phone that she identified as the number of the man who raped her. Trooper Flaugher then obtained records from AT&T identifying that number as belonging to Baker. The call records reflected that on the evening of the rape, there were several calls from the number he identified with Baker to the rape victim's phone number. At trial, the State did not call the custodian of records from AT&T to introduce the records, nor did the State give expert notice that it would seek to designate the investigating officer as an expert to interpret the phone records. The circuit court ruled that the officer could not testify about the location of the pings from the cell phone, but that he could discuss the calls made back and forth, and the records could be introduced. Trooper Flaugher testified that the phone number that the victim identified as the number of the man who raped her belonged to Baker and that the records showed there were several calls to the victim’s number from Baker’s phone on the night of the rape. The records were then admitted into evidence. This was first occasion in which the Court of Special Appeals (COSA) addressed whether computer records generally, or call records specifically, constituted hearsay. The COSA was persuaded that computer-generated records generally do not constitute hearsay and it concluded that when records are entirely self-generated by the internal operations of the computer, they do not implicate the hearsay rule because they do not constitute a statement of a “person.” In that situation, the admissibility of such data “should be determined on the basis of the reliability and accuracy of the process used to create and obtain the data.” While the COSA agreed that the records did not constitute hearsay, there was no evidence presented regarding how the call records were produced. As a result, the COSA was not able to conclude that the admission of the call logs was proper. Other records that were likely not computer-generated were the portions that supported the trooper’s testimony that the number that called the victim’s phone the night of the rape belonged to Baker. The COSA noted that it was more likely that it was data entered by a person. Such evidence that is generated by a person has been held to be hearsay and thus was inadmissible. On the record before them, the COSA held that in the absence of testimony from the custodian of records, or any 5-902(b) certification, the circuit court erred in admitting the call record.Sykes v. State
The COSA opinion begins by reminding that Maryland Rule 5-901(a) requires authentication of evidence, including electronically stored evidence, as a condition precedent to its admissibility. However, “the burden of proof for authentication is slight, and the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” For electronic evidence, the court will use the “reasonable juror” test and ask whether a reasonable juror might find it more likely than not that the evidence is what it purports to be – a preponderance of the evidence standard. Rule 5-901(b) sets forth a non-exhaustive list of the manners in which evidence may be authenticated. Relevant here, evidence may be authenticated directly through testimony of a witness “with knowledge that the offered evidence is what it is claimed to be,” or circumstantially, “such as [through] appearance, contents, substance, internal patterns, location, or other distinctive characteristics[.]” See Md. Rule 5-901(b)(1), (4). Sykes contended that the circuit court erred in admitting the text messages in his case in three respects: (i) the phone and outgoing messages were not authenticated; (ii) the contents of the incoming and outgoing text messages were inadmissible hearsay; and (iii) the text messages were irrelevant and highly prejudicial.Ownership of the phone
The COSA observed that the collective circumstances in Sykes demonstrate that the cell phone belonged to Sykes. The State introduced direct evidence that the phone belonged to Sykes through the testimony of two witnesses. At trial, both Officer Westerfield and Officer Chinn testified to seeing Sykes use the cell phone at the time of his arrest. Officer Chinn further testified that he saw Sykes take the phone from his pocket, unlock it, and place a phone call. Such possession and use are consistent with ownership. The officers’ testimony provided sufficient evidence for the circuit court to conclude that a reasonable juror could find that the phone was what the State purported it to be—a cell phone belonging to Sykes.Who sent the text messages?
Sykes presented a number of arguments that the evidence presented was insufficient to authenticate the outgoing messages. He first argued that no testimony from a witness with personal knowledge was presented, as none of the text messages that were offered at trial were alleged to have been sent in the officers’ presence. However, personal knowledge is just one method by which evidence may be authenticated pursuant to Maryland Rule 5-901. Sykes also maintained that the State failed to exclude the possibility that the phone belonged to someone else, for example by obtaining records of the account holder. The COSA found that such contentions were also without merit, as they went to the weight, not the admissibility, of the evidence. For admissibility purposes, the State was not required to disprove all other possibilities, nor was it required to prove authenticity with absolute certainty. Rather, it need prove “only that there was sufficient evidence for a reasonable juror to find by preponderance of evidence” that Sykes was responsible for the text messages. The COSA concluded that a reasonable juror could find it more likely than not that the outgoing text messages extracted from that cell phone were sent by Sykes. After reviewing the analysis in Sample, the COSA found that the content of the drug-related text messages was also consistent with the large quantity of heroin found during the arrest of Sykes. The State called an expert witness who testified that the terminology used in the text messages was consistent with heroin transactions. Moreover, the most recent incoming text message discussing drug transactions was received the day before Sykes's arrest and is marked: “Read.” Thus, the collective circumstances, coupled with the evidence of Sykes's control and possession of the cell phone, lent support to the circuit court's conclusion that a juror could find more likely than not that Sykes authored the text messages. There was sufficient evidence to conclude that a reasonable juror could find, by preponderance of the evidence, that Sykes owned the cell phone. Accordingly, the COSA found no error in the court's determination of authenticity. (citing Darling v. State, 232 Md. App. 430, 456 (2011) (“[O]nce a prima facie showing of authenticity is made, the ultimate question of authenticity is left to the jury.”).Relevancy
Sykes then argued that the “marginal relevance to an element of the offense charged” contrasted with the “distinct potential for working unfair prejudice” rendered the text messages inadmissible. The trial court admitted a total of 691 text messages, only a fraction of which constitute drug-related texts. As to relevancy, Sykes argued that the text messages discussing drug transactions were irrelevant because they could have been consistent with other drugs that were not heroin and that the expert testimony interpreting such text messages acknowledged as much. Sykes also posited that the drug-related text messages received closest to the time of arrest were received the day before, and the user of the phone did not respond to those texts. Therefore, Sykes argued, the messages did not demonstrate an intent to distribute. The COSA then reminded that all relevant evidence is admissible. Md. Rule 5-402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. Sykes was charged with possession of a CDS with intent to distribute. Sergeant Crouch testified that, in his expert opinion, the number of texts from customers soliciting drugs stood out as a significant indicator that the drugs found in Sykes's possession were for commercial use rather than personal use, although he could not say for certain whether the drug transactions were for heroin. The COSA then found that the number of drug-related text messages were relevant in that they made it more probable that Sykes both possessed the 84 packages of heroin and intended to distribute them. Moreover, whether the text messages are consistent with other drugs, in addition to heroin, does not render the text messages irrelevant, as they still made it more likely that Sykes had the intent to distribute the drugs found in his possession. When viewing the drug-related text messages in context with Sergeant Crouch's testimony interpreting the texts, as well as the other evidence presented at trial, the COSA concluded that it was apparent these messages cleared the relevancy threshold for admission. In contrast, the remaining non-drug-related text messages were not relevant to the case. For example, text messages stated “wyd,” “ok,” and others discussed paying bills and running errands. Such texts did not make any fact that is of consequence more or less probable, and the COSA held that the circuit court erred in admitting these texts. However, it further held that it was satisfied beyond a reasonable doubt that the error was harmless, as the irrelevant texts in no way contributed to the guilty verdict.Probative Value vs Prejudicial Effect
The COSA began its balancing analysis by noting that although evidence may be relevant, it nonetheless may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Md. Rule 5-403. However, “[e]vidence is never excluded merely because it is prejudicial.” Nor is the evidence excluded because the danger of prejudice simply outweighs the probative value. It must, “as expressly directed by Rule 5-403, do so substantially." “[U]nder some circumstances, where intent is legitimately an issue in the case, and where by reason of similarity of conduct or temporal proximity, or both, evidence of other bad acts may possess a probative value that outweighs the potential for unfair prejudice, the evidence may be admissible.” The text messages were introduced during Sergeant Crouch's expert testimony interpreting the texts in the context of whether the drugs were for personal or commercial use. The texts, aided by the expert testimony, were both probative as to both possession of the heroin and intent to distribute the heroin. Intent was “legitimately an issue” in the Sykes case. Sykes acknowledged as much stating that the text messages were “a key component of the State's case for mens rea.” Moreover, “prejudicial evidence is not excluded under Rule 5-403 only because it hurts one party's case.” Instead, the rule mandates that the prejudice must be “unfair,” meaning it “tends to have some adverse effect ... beyond tending to prove the fact or issue that justified its admission.” Though the text messages describing drug transactions were prejudicial to Sykes, they bore a specific nexus to an element of the charged crime: intent to distribute. As such, the COSA held that the admission of the text messages did not have an adverse effect beyond tending to prove the intent element. The court held that the circuit court did not err in admitting the drug-related text messages.Hearsay
With respect to hearsay, the issues were framed as follows: “[t]here are two threshold questions when a hearsay objection is raised: (1) whether the declaration at issue is a ‘statement,’ and (2) whether it is offered for the truth of the matter asserted.” There were incoming texts requesting specified amounts of drugs and outgoing texts responding to those requests such as: “I need 5 more;” “Can u thro 1 in so I can make something please that's 230 already;” “I need like 2 ....50;” and “This B ock bring me another 8th.” In determining whether the content of these text messages constituted hearsay, the COSA relied upon the holding in Garner v. State, 414 Md. 372 (2010), in which the COA addressed whether statements made over the phone in an attempt to buy drugs constituted inadmissible hearsay. In Garner, the COA upheld the circuit court's ruling that the testimony describing the phone call did not violate the rule against hearsay. In comparing drug-transaction cases with illegal betting cases, the Garner opinion stated that “[w]hen a telephone is used to receive illegal wagers or to receive orders called in by persons who wish to purchase a controlled dangerous substance, the telephone becomes an instrumentality of the crime.” The purchase of illegal drugs is a form of a contract, where there is offer and acceptance, so the “telephoned words of the ... would-be-purchaser are verbal parts of acts. In Sykes, the COSA held that the text messages did not violate the hearsay rule and the drug-related text messages constituted verbal parts of a drug transaction, with the cell phone being an instrumentality of the crime. The COSA continued stating that the text messages were offered not to prove that the specific drug transactions in the texts occurred, as Sykes posits, but rather that Sykes was in possession of the cell phone which numerous persons frequently texted in attempts to purchase drugs, and from which responsive texts emanated. The text messages had legal significance to prove that drug transactions were discussed, regardless of whether the offers were accurate or genuine. As in Garner, the COSA stated these text messages constitute verbal acts, and the “performative quality” of these acts justifies non-hearsay treatment because the texts were admissible to show that drugs were sold as a result of the text being received. The COSA finished its analysis of the issue by observing that the drug-related text messages here—those not falling within the verbal acts doctrine—did not depend on the truth of any implied factual proposition of the declarant, rather, they were offered as “probative circumstantial” evidence. Taking Sykes's example, it noted that the text message discussing the weight of the two packages was not offered to prove that Sykes sold two packages of controlled substances, where one package compensated for the other, but was offered to prove the very fact that the statement was made. The COSA reviewed how, at the pre-trial motions hearing, the State had indicated that it would be introducing those drug-related text messages through Sergeant Crouch's testimony to explain why those conversations are drug related. According to the State's proffered use, the declarant's belief in the truth of the statements was irrelevant. Whether any implied assertion was “sincerely and accurately stated” would have no bearing on the purpose for which they were introduced: to demonstrate that the phone in Sykes's possession engaged in drug-related conversations. The COSA held that these drug-related text messages were not offered for the truth of the assertions, and, therefore, constituted non-hearsay.Expert Opinion Testimony
Sykes contended that expert testimony was improperly admitted because the State failed to comply with Rule 4-263(d)(8). The COSA rejected Sykes' contention, without necessarily concluding that the State's notice complied with the Rule. Rather, it faulted Sykes for his failure to properly address the issue at the trial level. An expert notification was sent in June, 2017 indicating that Sergeant Crouch was to be offered as an expert in drug forensics and “[m]ay testify about the packaging, sales, [and] street value of controlled dangerous substances as well as offering [an] opinion as to whether the factual circumstances presented are consistent with personal use or distribution.” The parties also agreed that, in response to Sykes's initial contention that the disclosure was inadequate, the State informed Sykes that Sergeant Crouch “would not be rendering any opinions until he was within court.” The information allegedly omitted from the expert notice was the substance of Sergeant Crouch's findings and the grounds for his opinions because at the time the expert notice was provided, Sergeant Crouch had not yet reviewed the evidence or rendered an opinion. Sykes was nonetheless aware that Sergeant Crouch was an expert in narcotics investigations and that he would eventually render an opinion based on the trial evidence as to whether the heroin seized from Sykes was for distribution or personal use. Based on this information, Sykes could have generally anticipated Sergeant Crouch's testimony, and Sykes's trial counsel stated as much during the hearing on the motion in limine. Therefore, Sykes failed to explain how the expert notice prejudiced his defense. Further, if Sykes believe that the State was required to disclose more information about Sergeant Crouch's training or the substance of his opinion, he could have filed a motion to compel under Maryland Rule 2-432(B). However, he failed to do so and he similarly did not request a continuance for the purported discovery violation. As a result, the COSA found no abuse of discretion in the trial court's decision to allow Sergeant Crouch's expert opinion testimony. This part of the opinion should remind us - when faced with the initial boilerplate expert notice so commonly filed by the State in these cases - it is not enough to simply file an initial objection to the sufficiency of the notice. When the State fails to respond to the objection with a more specific notice that complies with the demands of the Rule, a motion to compel is required to preserve the issue. If the matter is still not resolved satisfactorily, then one must be prepared to articulate the specific prejudice to the defendant from the deficient notice and, if necessary, request a continuance to be able to properly respond to a late notice. Failure to be persistent in making, repeating, and preserving the expert notice objection may, as in Sykes, doom the issue on appeal.]]>By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
As the courts and litigants have become more familiar with remotely conducting court proceedings, reliance on remote technology, such as Skype, Zoom, WebEx and Teams, has become more common and the litigants and the courts have become more adept at utilizing such technology as a matter of convenience and economy. As trial lawyers, the time saving that accompanies being able to remotely conduct proceedings, such as status hearings, without having to spend an hour or two traveling to and from the courthouse, has been one of the few benefits of living through pandemic times. When a client is being charged on an hourly basis, remotely conducting preliminary types of proceedings also saves the client from incurring significant costs just for our travel and waiting time. However, there are instances where convenience and economy of time do not provide an adequate substitute for in-person proceedings and for the right of a party to confront, in-person, an accuser. The Court of Special Appeals ("COSA") in Spinks v. State, ---A3d.---, WL 4451981 (2021), teaches us that the right to confront a witness in-person is not absolute, while at the same time, emphasizes that permitting an alternative to such in-person confrontation is not justified by mere considerations of convenience and economy. In Spinks the sole question presented was whether the trial court violated Spinks' Sixth Amendment right to confront his accuser by allowing Oumar Sanoh, the victim of an armed robbery, to testify via Skype. COSA concluded that the trial court did not err in admitting the Skype testimony and affirmed Spinks' conviction. The Spinks opinion is instructive as to how a trial court should evaluate the sufficiency of the reasons for proceeding remotely, and the opinion provides an example of how detailed fact finding by the trial court can support the granting of a party's request to have a witness appear remotely. As this article reviews the Spinks opinion, it is important to remember that convenience and economy are explicitly rejected as reasons to proceed remotely. Findings of necessity and reliability of the remote technology were made by the trial court in Spinks and the trial court concluded that, while cross-examination was being done remotely in Spinks' trial, the right of confrontation was sufficiently protected to justify proceeding remotely. It is also significant that the trial court found that the testimony of Sanoah was, in large measure, not disputed, leaving open the question as to how the trial court might have ruled had the witness' testimony been more substantial and more contested. As the Spinks trial approached, Sanoh had been served with a subpoena, however, before the trial, Sanoh was notified that his mother, who lived in Guinea, had been hospitalized for a medical emergency so Sanoh flew home to Guinea the next day to be with her in Guinea. Once in Guinea, Sanoh was unable to return to the United States because he did not have a visa and was unable to secure one. The prosecutor, confronted with the fact that Sanoh could not lawfully re-enter and return to the United States, argued that the court could permit Sanoh to testify remotely via Skype without violating Spinks' Sixth Amendment right of confrontation and supported its argument by relying upon Maryland v. Craig, 497 U.S. 836 (1990), and White v. State, 223 Md. App. 353 (2015). At the preliminary hearing on whether to admit the remote testimony, Sanoh testified that he was not a U.S. citizen, that his visa expired in 2018, and that while he would have liked to return to the United States, he could not do so without a new visa. The trial court made the following findings of fact:(a) In General. Subject to section (b) of this Rule and Rule 2-804, a court, on motion or on its own initiative, may permit . . . participants to participate in an evidentiary proceeding by means of remote electronic participation
(1) with the consent of all parties, or
(2) in conformance with section (c) of this Rule. . . .
* * *
(c) Absence of Consent; Required Findings. In the absence of consent by all parties, a court may exercise the authority under section (a) only upon findings that:
(1) participation by remote electronic means is authorized by statute; or
(2) the participant is an essential participant in the proceeding or conference; and
(A) by reason of illness, disability, risk to the participant or to others, or other good cause, the participant is unable, without significant hardship to a party or the participant, to be physically present at the place where the proceeding is to be conducted; and
(B) permitting the participant to participate by remote electronic means will not cause substantial prejudice to any party or adversely affect the fairness of the proceeding.
Committee note: It is not the intent of this section that mere absence from the county or State constitute good cause, although the court may consider the distance involved and whether there are any significant impediments to the ability of the participant to appear personally.
After considering the lessons from the Craig/White analytical framework for determining whether two-way video testimony comports with the Sixth Amendment right of confrontation, the Spinks court held that the trial court did not err in allowing Sanoh to testify via Skype and that the preliminary hearing comported with the procedure approved in White for testing the reliability of the Skype platform and for determining individualized necessity and public policy and concluded that the State established a constitutionally valid predicate for permitting Sanoh to testify via Skype. While COSA approved of the use of the Skype testimony in Spinks, this was a case in which the trial court engaged in detailed and specific fact finding to support it conclusion of necessity and reliability and where it was determined that there was a need to protect an important public policy. Efforts to use Spinks to support a request for remote testimony, when not the result of mutual agreement amongst the parties, will require the moving party to be prepared to present compelling facts to support the necessity of such a request. As COSA noted, "convenience" and "efficiency" are not sufficient public policies to dispense from the right to physical face-to-face confrontation. It appears clear that the moving party will be required to show what efforts have been made to secure the in-person testimony of the witness. Proof of necessity is a traditional type of burden lawyers are accustomed to addressing. Proof of reliability may be more challenging and be impacted by the quality of the vehicle used to accomplish the remote testimony. As many of us have experienced during COVID, even as we have become more familiar with the technology used to conduct remote proceedings, we still continue to experience the technical difficulties that often accompany the use of such applications. When considering the impact of remote testimony on a defendant's Sixth Amendment rights, counsel needs to be constantly sensitive to whether the technology "as applied" is sufficiently reliable - and that it continues to be so throughout the course of the remote testimony. In Spinks the trial court found that Skype provided good quality video and audio. What would happen, however, if, in a particular case, despite a preliminary finding of reliability, the actual connection during the testimony deteriorates and becomes poor, the image freezes at times, the audio is of poor quality, or there are unforeseen distractions in the background or location where the witness is located? What if there is not the ability to fully vet the location where the witness is located - and who else may be present - or what materials might be available - perhaps hidden - for the witness to use to guide or refresh the witness' testimony? Is someone in the room in which the witness is testifying - perhaps out of sight - who might be in a position to "coach" the witness? Body language as a factor in assessing credibility is something that can be seen in the courtroom such as, the wrangling of one's hands, tapping on the witness stand, bouncing one’s knee, and general nervousness. How are those to be considered when the witness may only be seen from the shoulders up? Does one have a right to insist on a full-length body view of the witness as the witness testifies? The ability to control not just the tenor of cross-examination, but also the pace of the cross-examination is important, and judgments as how to change tenor or the pace of questioning are often made "on the fly" as one is assessing the witness' responses. Distance and delay in audio, minimizes the ability to do so. If the witness is upset, looking for a "way out" and chooses to engage in unpredictable conduct - how does the judge compel the witness to obey instructions through the internet? Any occurrence that aggravates the prejudice arising from the lack of an opportunity for in-person confrontation must be objected to and a complete record made of what occurred. Do you demand that the remote video testimony be video recorded so that you have the best and most complete record for any appellate review of how technological difficulties or other issues impact on lessening your ability to cross-exam the witness in an effective manner? To re-emphasize, the question of admissibility does not end simply when the trial court finds necessity and reliable technology. Objections need to be made when unexpected events occur during the remote proceedings. As technology changes and the methods of conducting remote proceedings change, demands for conditions under which remote proceedings should be conducted will also evolve. Can you require equipment that permits one to observe not just the witness but the entirety of the room in which the witness is located - perhaps by requiring multiple cameras? Can and should one demand that the witness appear in a commercial facility that can accommodate remote video testimony - and better ensure that there will be no distracting or inappropriate - and unseen - influences in the room where the witness is located during the testimony? When the remote testimony has been completed, review and consider contemporaneously whether all necessary objections have been made and the objections particularized on the record with proper references to the portions of the testimony that are at issue. Perhaps individual objections that may have been overruled when made individually will assume greater significance when the cumulative effect of multiple objections are considered at the end of the testimony and at that point provide a basis for taking the position that there has been unacceptable infringement of the defendant's Sixth Amendment right to effective cross-examination? Consider also, the situation in which it is the defense making the request for remote testimony, rather than the State. Does the State's right to cross-examine a defense witness get the same weighty consideration as does the constitutional right of an accused? What if a defense witness is out-of-state, perhaps does not want to return to Maryland because of concerns of legal jeopardy, or for other reasons less compelling than those in Sprinks? How would a trial court weigh necessity, reliability, convenience and economy when it is an accused who seeks to offer remote testimony? Does the public policy consideration of affording a crime victim a means to have access to court recognized in Spinks apply equally to an argument that there is an equally important public policy of ensuring that a defendant has due process by ensuring that defense witnesses can testify remotely? The answer will likely have to await a case where such a request is denied and the case works its way to the appellate courts. The Sixth Amendment right to confront a witness goes to the heart of why we have an adversarial trial system. We must continue to be alert as challenges arise that jeopardize infringing on that most valuable of trial and constitutional rights. ]]>By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
In Lawrence v. State, 257 A.3rd 588 (2021), the Court of Appeals (COA) was called upon to answer the following question: Is wearing, carrying, or transporting a handgun on or about one’s person a strict liability crime?
On August 10, 2021, COA answered that question in the affirmative, in spite of COA’s and the Supreme Court’s disfavor of omitting mens rea as an element of criminal statutes. Historically, at common law, a crime occurred only upon the concurrence of the individual's act and his guilty state of mind. See, e.g., Morissette v. United States, 342 U.S. 246, 251-252 (1951). “There can be no crime, large or small, without an evil mind. In other words, punishment is the sequence of wickedness.... It is, therefore, a principle of our legal system ... that the essence of the offense is the wrongful intent, without which it cannot exist.” 1 Bishop's Crim. Law, § 287 (9th ed. 1923). So noted COA in Dawkins v. State, 313 Md. 638, 643–47 (1988) when it held that "knowledge" of the presence of a drug that one was accused of possessing was an essential element required to prove the charge of possession and that the accused, in order to be found guilty, must know of both the presence and the general character or illicit nature of the substance. Similarly, in State v. McCallum, 321 Md. 451, 454–55 (1991), COA held that mens rea is required for the offense of driving while suspended. Neither the statute discussed in Dawkins nor that discussed in McCallum contained "knowingly" language as an element of the offense. Despite this, COA determined that “far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.” McCallum (citing United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978)). In Dawkins and McCallum, COA also rejected the arguments that scienter was not a required element because the offenses were regulatory in nature. At the time that Dawkins was decided, possession of a controlled substance carried a potential sentence of up to four years imprisonment. At the time that McCallum was decided, driving while suspended carried a potential sentence of up to one year of imprisonment. In Dawkins, COA stated that: [T]he prohibition against possessing a controlled dangerous substance, such as heroin, cocaine, etc., is regarded as a most serious offense, particularly in light of the association between illegal drugs and other crime. The penalty for the possession offenses reflects the seriousness of the crime. An individual may be sentenced for up to four years in prison or receive a $25,000 fine. The purpose of imposing a penalty upon possession of narcotics is to punish and deter immoral behavior having serious consequences, rather than merely to regulate conduct. In McCallum, COA also address the argument that the offense was "regulatory in nature": While we recognized that many motor vehicle laws are regulatory, the instant offense is both regulatory and punitive…The maximum penalty for driving while suspended is significant. It carries a period of incarceration not to exceed one year, and a second offender can receive double the period of incarceration. Both the nature of the penalty and the inclusion of an enhanced penalty for repeat offenders give some indication that the Legislature did not intend this to be a “public welfare” offense. As we begin our discussion of Lawrence v. State, it should be noted that Crim. Law (“CR”) § 4-203(a)(1)(i), which prohibits "wearing, carrying or transporting a handgun, whether concealed or open, on or about the person," carries a potential of up to three years of imprisonment and/or a fine of $2,500. Lawrence was charged with possession of a regulated firearm by a disqualified person; possession of ammunition by a disqualified person; wearing, carrying, or transporting a handgun on or about the person; possession of cocaine; driving under the influence of alcohol; and driving while impaired by a controlled dangerous substance. Lawrence testified at his trial and denied knowing about the handgun found in the vehicle he was driving. The jury acquitted Lawrence of possession of a regulated firearm by a disqualified person and possession of ammunition by a disqualified person and convicted him of the remaining counts. Lawrence was acquitted of the handgun and ammunition offenses that required scienter. He was convicted of wearing, carrying and transporting a handgun after the trial court refused to give a jury instruction that the State was required to prove that the handgun had been "knowingly possessed." In affirming Lawrence's conviction COA held that: [T]he trial court did not err in propounding the State's requested jury instruction stating that although this Court and the Supreme Court disfavor omitting mens rea as an element of criminal statutes, the doctrine of stare decisis compels us to interpret the statutory elements of Md. Code (2002, 2021 Repl. Vol.), Crim. Law (“CR”) § 4-203(a)(1)(i) as omitting mens rea, based on the plain text of the statute, our previous holding in Lee [Lee v. State, 311 Md. 642 (1988)], and the General Assembly's acquiescence to that decision, we hold that “knowledge” is not an element of the crime charged. Lawrence was charged under the section of the statute that prohibits the "wearing, carrying or transporting a handgun on or about the person" and not another section of the statute that prohibits the "knowing transporting of a handgun in a vehicle." The second part of the statute does require scienter to prove that one knowingly transported a handgun in a vehicle. It was the "wearing, carrying and transporting on or about the person" that COA held does not require proof of knowing possession. The Lawrence opinion relied exclusively on the Lee case decided 33 years earlier. In Lee v. State, 311 Md. 642 (1988), COA was confronted with the question "[d]oes the Maryland statute prohibiting the carrying of a handgun require knowledge of the presence of the handgun and, if so, was the evidence sufficient to convict [Lee and Hall] of this charge?" In Lee, Lee and Hall were convicted of attempted second degree murder, robbery with a deadly weapon, use of a firearm and carrying and wearing a handgun. In addition to the handgun being recovered in a gym bag that had been possessed by both Lee and Hall, evidence showed that the same handgun was used 17 hours earlier by Hall in the robbery. After holding that the evidence was sufficient in that case to prove actual knowledge, the Lee opinion continued to hold that while the evidence was sufficient to prove actual knowledge, "knowledge" is not an element of the offense and that "wearing, carrying and transporting a handgun on or about the person" is a strict liability offense. The entirety of the analysis by COA of this issue in Lee is as follows: Moreover, the governing statute, Md. Code (1957, 1982 Repl.Vol.), Art. 27, § 36B(b) provides: Any person who shall wear, carry or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads ... shall be guilty of a misdemeanor; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun.... Hall contends that this statute requires knowledge to convict for either wearing or carrying a handgun. The plain language of § 36B(b) creates strict liability for the wearing or carrying of a handgun about one's person. The scienter requirement applies only to vehicular transportation of a handgun and was inserted “so that a person who shows that he was not aware that his vehicle was transporting a handgun will not incur penalties.” Shell v. State, 307 Md. 46, 69, 512 A.2d 358, 369 (1986). This interpretation is strengthened by the fact that the legislative bill by which § 36B(b) was proposed provided for strict liability without any knowledge requirement as to wearing, carrying and transporting. The “knowledge” requirement for transporting was inserted by amendment. See Acts of 1972, ch. 13. The addition of a scienter requirement specifically for vehicular transport underscores the corresponding omission of that requirement for wearing and carrying handguns. Thirty-three years later, in Lawrence v. State, for fourteen pages, COA explains why the doctrine of stare decisis required it to affirm Lawrence's conviction based upon this limited analysis in Lee, and held that "wearing, carrying and transporting a handgun on or about the person" does not require proof that the person had actual knowledge that the person was "possessing, carrying or transporting handgun on or about the person." COA held that CR § 4-203(a)(1)(i) sets forth a strict liability offense. In explaining its decision, the Court stated: Thirty-three years ago, in interpreting the predecessor statute to CR § 4-203(a)(1)(i), this Court's Lee decision affixed strict liability to the crime of wearing, carrying, or transporting a handgun on or about the person. Our interpretation of the text, statutory structure, and legislative history of CR § 4-203(a)(1)(i) confirms such an interpretation, even in light of the Supreme Court's presumption in favor of including mens rea as an element of criminal statutes. Moreover, in declining to amend the language of the offense in the thirty-three years since Lee was decided, it is apparent that the General Assembly has acquiesced to our holding in that case. The General Assembly has “wide latitude” to set forth strict liability offenses as long as they are constitutional. Where CR § 4-203(a)(1)(i) neither violates the Due Process Clause of the United States Constitution nor requires us to consider whether the General Assembly intended to set forth a “public welfare offense,” we see no need to depart from the doctrine of stare decisis. We have found no such indicia demonstrating that the General Assembly intended to include mens rea as an element of CR § 4-203(a)(1)(i). In contrast to the relationship between CR § 4-203(a)(1)(i) and (ii), the statutory structure in Dawkins supported the assertion that the General Assembly intended to include mens rea as an element of Article 27, § 287(a) and (d). The statute at issue in McCallum is similarly distinguishable on the ground that it was entirely silent as to mens rea and provided no indication that the General Assembly intended to omit mens rea as an element. The Lawrence opinion relies heavily on two factors. First, that the General Assembly included the requirement that to be convicted of transporting a handgun in a vehicle that such transporting be done "knowingly." Second, that in the thirty-three years since Lee was decided the General Assembly has taken no action to modify the statute to including the "knowing" language as a required element of "wearing, carrying or transporting" a handgun. One might posit - did the General Assembly not take action because it did not seem likely that one could wear, carry or transport a handgun on or about one's person without knowing that one had it in one's possession. It is hard to imagine that where the conduct is so similar and the penalty the same that the General Assembly intended to require proof of one's knowledge when transporting a handgun in a vehicle but intended one to be strictly liable - even in the absence of knowledge - for "wearing, carrying or transporting a handgun on or about the person." Is there any logical explanation for why the General Assembly would take steps to prevent one who was without knowledge of the presence of a handgun in a vehicle from being convicted of transporting a handgun in a vehicle but would hold strictly liable one who was wearing, carrying or transporting handgun on or about the person? What about the person who is carrying the backpack of another person that - unknown to that person - has a handgun in the backpack? Or did it intend to let the State decide - on the same facts - to either charge the strict liability offense of "wearing, carrying or transporting a handgun on or about the person" or charge transporting a handgun in a vehicle and impose on it the requirement of proving scienter? Lawrence was arrested when the arresting officer found Lawrence behind the driver's wheel, unconscious, and later discovered on the floorboard at Lawrence's feet, the handgun. The handgun was not found "on" his person, but clearly "about" his person. Lawrence could also have been charged with transporting the handgun in the vehicle - but he was not. Did the State choose to charge as it did anticipating that it could proceed on a strict liability theory rather than having to prove "knowledge" if it charging transporting a handgun in a vehicle? If the General Assembly included the "knowing" element in the transporting a handgun in a vehicle to avoid one being convicted of transporting of handgun who was not aware that his vehicle was transporting a handgun, why is that not clear evidence of the intention of the General Assembly to require that a possessor have knowledge of what he or she is accused of possessing? Lee did not focus on the issue of what happens when the State's evidence does not establish "actual" vs. "constructive" possession. In Lawrence, the evidence arguably could have been sufficient to show constructive possession of one who was transporting a handgun in a vehicle. The conviction was based, however, on a charge of "wearing, carrying or transporting a handgun on the person" and, because the evidence was that the handgun was found - not on Lawrence's person - but rather at his feet - it had to be based upon a constructive possession theory. Smith v. State, 415 Md. 174, 187 (2010), in discussing the concept of constructive possession in a drug case, reminds us that:It has long been established that the mere fact that the contraband is not found on the defendant's person does not necessarily preclude an inference by the trier of fact that the defendant had possession of the contraband. (Internal citation omitted). Inherent in the element of exercising dominion and control is the requirement that the defendant knew that the substance was a CDS. Knowledge is a required element because “an individual ordinarily would not be deemed to exercise ‘dominion or control’ over an object about which he is unaware.” (Internal citation omitted). “[K]nowledge may be proven by circumstantial evidence and by inferences drawn therefrom.” (Internal citation omitted). Thus, we must determine whether there was sufficient evidence from which a reasonable fact-finder could conclude that Smith exercised dominion or control over the marijuana and had knowledge of the presence of the marijuana. If the State choses to proceed on the "strict liability" offense, but the possession is based only proof of constructive possession - is the accused entitled to a jury instruction on possession - which includes the requirement that the prosecution prove that the accused had dominion or control over an item? Case law makes clear that one cannot exercise such dominion or control over an item the presence of which is unknown. Does Lawrence limit the State's ability to proceed on "strict liability" to those fact patterns where the possession is actual and not constructive? Lawrence seems to recognize the potential for injustice in applying its strict liability ruling when, in the concluding portion of the opinion, COA observes: However, we do think that this Court's, and the Court of Special Appeals', broad application of the term “on or about” leaves some questions about the notice afforded to defendants alleged of wearing, carrying, or transporting a handgun “about” their person. While we do not see fit to invalidate CR § 4-203(a)(1)(i) on constitutional grounds, the correct course of action in instances such as these is to signal to the General Assembly that, “in light of these policy concerns, ... legislation ought to be considered” to address the scope CR § 4-203(a)(1)(i) given its classification as a strict liability offense. In re S.K., 466 Md. at 57–58, 215 A.3d 300. Application of the Lawrence holding presents the very real potential for injustice. An uncritical application of the "strict liability" ruling could easily result in the creation of a category of "criminals" who, without a guilty mind, are convicted of the possession of a handgun, the presence of which was unknown to the person. When combined with the discretionary authority of a prosecutor to charge under the "strict liability" section of the statute, even when the facts would also support the charging of the "knowingly transport in a vehicle" section of the statute, the State can effectively gut the intention of the General Assembly to prohibit one from being convicted of unknowingly transporting a handgun in a vehicle. Perhaps the saving grace is that most "wearing, carrying or transporting on or about a person" cases will be where the person is in actual possession of the handgun. Constructive possession-based cases, however, are limited only by the sense of justice and good judgement of a prosecutor. While Lawrence may be controlling as to whether knowledge is a required element of the offense, it may leave open the question, in constructive possession cases, whether knowledge can be required where the State has to prove dominion or control over an item and, thus, must also prove that the accused had knowledge of the item over which dominion or control has to be exercised. ]]>AND SOME FOURTH AMENDMENT THOUGHTS
By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.
Transitioning from the days of rotary phones and TV sets that carried only three channels to the current era where it seems that there is a new electronic device available every other day – the times and places where we can avoid being tracked, intercepted, and videoed – are quickly diminishing.Alexis isn’t just listening to us just when we want to play that old favorite, rather she hears us discipline our children and engage in loving or not-so-loving banter with our significant others. EZ Pass bills you for the use of the roadway – but also creates a daily record of your movements.
Our cellphones have become a permanent appendage and an essential organ – having more capacity to store and recall data, numbers, and images than our own brains. Our phones can track our heart rate and the number of steps in a day. Our phones have replaced briefcases and notebooks, now carrying financial, business, and medical information in addition to a wide variety of other personal information.
How many of us have had clients who regret their decisions to have very personal and intimate pictures shared and stored on their cellphones only to have the device seized and the contents downloaded by law enforcement?
Advances in technology that permit ever intrusive types of invasions of our privacy have now required the courts, attorneys, and law enforcement, to rethink notions of how to define "expectation of privacy" when it comes to the Fourth Amendment and traditional legal principals of search and seizure.
Recognizing that a person's expectation of privacy is invaded when the police stick a hand in your pants and recover an item is a no-brainer. However, what is the constitutional definition of "expectation of privacy" when a new electronic device permits an intrusion and inspection of personal data in new and novel ways?
Search consideration may be different at different stages of a searching process. The seizing of a cellphone may be followed by a visual inspection of what is immediately apparent on the screen. If the screen is in sleep mode - does touching the screen activate the phone so that what was not immediately apparent when the phone was seized, now becomes apparent? If the phone was not turned on - can it be turned on to see what appears on the screen? If there is no password required, can messages, pictures or other data be viewed by manipulating the screen? When is a warrant required? Is it required to view what is immediately apparent if the phone is activated or only when there is a "deep dive" into the contents of the cellphone by the use of the Cellebrite (or similar) forensic program? How long can the phone be held before a search warrant is obtained? Does the right of the police to seize and retain the cellphone evaporate if there is not a prompt obtaining of a search warrant and prompt downloading of the contents of the program? Is the downloading of the entire data of a cellphone, tablet or computer an unconstitutionally overbroad search when the information sought might be very limited in terms of the dates, time or content of the sought-after information? Does the potential inability of law enforcement to conduct a focused search for certain relevant texts justify the complete inspection of the cellphone to include those private and personal conversations? Do traditional notions such as "trespassing" on the curtilage of a residence become inapplicable when advanced surveillance equipment can similarly invade one's privacy - but without physically trespassing on the curtilage?
How does one advance new concepts of what is "a reasonable expectation of privacy" in challenging the manner in which evidence is obtained and for demanding the application of the requirements of a warrant, or probable cause or even reasonable suspicion?
Observations of items in "plain view" are outside the warrant requirement and do not require probable cause or even reasonable suspicion. But what is "plain view" - when current technology allows law enforcement to see that which has been not so plain and not so easy to observe in the past?
LONG LAKE TOWNSHIP V. MAXON
"WHO'S GOT AN EYE ON YOU!"
A thought-provoking case that shows the need to constantly rethink how we define what is “reasonable” - when we talk about having "a reasonable expectation of privacy" - was decided by the Michigan Court of Appeals in Long Lake Township v. Maxon, -- N.W.2d --, (2021 WL 1047366) (decided March 18, 2021). This was a quasi-criminal/civil case in which the owners of a property, that the Township alleged constituted an illegal salvage or junk yard, sought to suppress aerial images of their property taken through the use of a drone.
The landowners contended that their case was distinguishable from prior cases in which manned aerial surveillance and photographing by fixed wing aircraft or helicopters was held to not violate one's reasonable expectation of privacy. Here the property owners argued that unlike fixed-wing aircraft or helicopters, drones are equipped with high power cameras and do not operate at the same altitude as airplanes and helicopters. The Maxons further argued that the operation of the drone did not comply with the Federal Aviation Administration (FAA) regulations. Finally, the record included photographs that clearly showed that very little, if any, of the Maxon property at issue was visible from the ground due to a combination of buildings and trees.
The Township had the drone operator (who it was agreed was acting as an agent of the Township) submit an Affidavit in which he contended that he maintained a constant visual line of sight of the drone and that the drone operated at an altitude of less than 400 feet and, thus, was in compliance with FAA regulations.
At the trial level, the Maxons' motion to suppress was denied with the trial court basing its decision on Florida v. Riley, 488 U.S. 445 (1989), in which the Supreme Court held that "the visual observation of the defendant's premises from a helicopter did not constitute a search under the Fourth Amendment" and further found that the FAA regulations were "safety rules and [did]not define the scope of the Fourth Amendment." The Supreme Court reached a similar conclusion in California v. Ciraolo, 476 U.S. 207 (1986), where police observed marijuana plants from an aircraft. There the Court stated:
One can reasonably doubt that in 1967 Justice Harlan considered an aircraft within the category of future “electronic” developments that could stealthily intrude upon an individual's privacy. In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.Id. at 215.
The Michigan Court of Appeals noted that the Township did not seriously contest that the area observed by the drone was within the curtilage of the Maxons’ home - so the Court focused on the issue of whether the Maxons had an actual and reasonable expectation of privacy.
The Maxon Court reminded that “[t]he permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass” and “[v]isual surveillance was unquestionably lawful because ‘the eye cannot by the laws of England be guilty of a trespass.’”
The Maxon Court reviewed the Supreme Court's opinion and analysis in Kyllo v United States, 533 U.S. 27 (2001), and its discussion on how technological advances might affect decisions as to what privacy expectations society should continue to recognize as reasonable. The Court further observed that with respect to privacy within the home that “the homeowner should not be ‘at the mercy of advancing technology’ that might eventually be able to see directly through the walls outright.”
The Kyllo Court held that the use of a thermal imaging device on an individual's home to detect whether the heat emanating from within the home was consistent with the high intensity lights used in a marijuana growing operation was a search. It held that the use of sense-enhancing technology to gather any information regarding the interior of home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constituted a “search”.
The Maxon Court concluded that “much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individual's property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley.” Thus, “drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.”
The Court further found that while noncompliance with the FAA regulations did not, per se, constitute a Fourth Amendment violation, “the drone surveillance of this nature intrudes into persons' reasonable expectations of privacy” and is illegal without a warrant.
In explaining it decision, the Maxon Court noted that FAA regulations require drone operators to keep the drone within visual observation at all times, fly no higher than 400 feet, refrain from flying over human beings and require a certification and, as a result, drones are qualitatively different from airplanes and helicopters and they fly less than a little more than a football field distance from the ground. A drone is necessarily more intrusive into a person's private space than would be the case with an aircraft. Further, drone overflights are not commonplace like airplane overflight, and drones are more targeted in nature and intrinsically much easier to deploy. Thus, “given their maneuverability, speed, and stealth, drones are - like thermal imaging devices - capable of drastically exceeding the kind of human limitation that would have been expected by the Founders not just in degree, but in kind.”
While acknowledging that the United States Supreme Court rejected that land ownership extends upward forever, the Maxon Court stated that landowners are still entitled to ownership of some airspace above their properties, such that intrusions into that airspace will constitute a trespass no different from an intrusion on the property itself.
The Maxon opinion pointed out that “just because it is well-known that a particular intrusion into privacy is technologically feasible does not cause a person's reasonable expectation of privacy to evaporate.” Continuing it stated that “[w]e decide this matter based upon the defendants' reasonable expectation of privacy - critical to which is that any reasonable person would have expected a low-altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window.”
Courts will continue to struggle with evolving arguments as to how to apply the Fourth Amendment adopted in the late 1700's to the current times when the concept of what is a reasonable expectation of privacy implicates concerns and considerations never contemplated by the Founding Fathers.
Another interesting consequence of the courts evolving opinions on what is a reasonable expectation of privacy is how courts deal with searches that when conducted were lawful, but with advanced technology and new concepts of privacy, the search may no longer be lawful. In such circumstances, courts generally find that it is appropriate to apply the good-faith exception to uphold the search, noting that at the time of the search the law enforcement officers were operating in the good-faith belief that the search was lawful and consistent with the then current state of the law.
An example of such an issue was presented in United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019). In April of 2015, a minor alerted law enforcement officers that Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states. As part of the investigation that followed, when Aigbekaen returned to the United States from traveling abroad, the Government seized his MacBook Pro laptop, iPhone, and iPod at the airport and conducted warrantless forensic searches of the data on all three devices. The Government subsequently charged Aigbekaen with sex trafficking and related crimes, and at the conclusion of a nine-day trial, the jury convicted him of these crimes.
Aigbekaen appealed, arguing primarily that the warrantless forensic searches of his digital devices violated the Fourth Amendment. The Government countered that the searches fell within the “border search” exception to the warrant requirement and that, in any event, suppression was not appropriate. The Fourth Circuit Court agreed with Aigbekaen that the border search exception did not extend to the challenged searches, rendering them unconstitutional but it agreed with the Government that the good-faith exception to the exclusionary rule bars suppression and affirmed the conviction.
The Fourth Circuit found that the warrantless forensic searches of Aigbekaen’s devices in May of 2015 lacked the requisite nexus to the recognized historic rationales justifying the border search exception. When Aigbekaen landed at the airport with his MacBook Pro, iPhone, and iPod in tow, agents had reasonable suspicion and probable cause to suspect that he had previously committed grave domestic crimes; however, these suspicions were entirely unmoored from the Government’s sovereign interests in protecting national security, collecting or regulating duties, blocking Aigbekaen’s own entry, or excluding contraband. Thus, the Court explained that holding the border search exception applicable here, based simply on the Government’s knowledge of domestic crimes, would “untether” that exception from its well-established justifications.
On the facts of the Aiggekaen case, the reasonableness of requiring law enforcement to secure a warrant before conducting an intrusive forensic search of a traveler’s digital device, solely to seek evidence of crimes with no transnational component, is readily apparent. By the time Aigbekaen arrived at the airport with his devices, and prior to any searches of those devices, agents had probable cause to believe that Aigbekaen’s laptop, at least, contained evidence of domestic sex trafficking. Indeed, in August of 2015, agents secured warrants to search both the MacBook Pro and the iPhone, relying almost exclusively on evidence that was in the agents’ possession before Aigbekaen arrived at the airport in May. Given the information in its possession at the time, the Court held that it was only reasonable to expect the Government to have procured these warrants prior to the May searches.
In contrast, the Court noted that it would be patently unreasonable to permit highly intrusive forensic Government searches of travelers’ digital devices, without warrants, on bases unrelated to the United States’ sovereign authority over its borders. The Court made it clear that it did not question the import of the Government’s general interest in combatting crime, however, it also made clear that it did not agree that this interest categorically eclipses individuals’ privacy interests in the vast troves of data contained on their digital devices when the suspected offenses have little or nothing to do with the border.
The agents who searched Aigbekaen’s devices in May of 2015 reasonably relied on an “established and uniform body of precedent allowing warrantless border searches of digital devices.” Although it had long been understood that the scope of a warrant exception should be tailored to the purposes underlying that exception, no court had yet applied that principle to require a warrant “for any border search, no matter how non-routine or invasive.” The Fourth Circuit noted that only in 2018 did it recognize that “a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception” and so require a warrant. With the Aigbekaen opinion, the Fourth Circuit applied that principle to hold unconstitutional an attenuated, warrantless, non-routine forensic search at the border.
Motions seeking to suppress evidence obtained in violation of newly recognized areas where one has a reasonable expectation of privacy may be successful in that the court may agree to recognize the "new" area of privacy protected by the Fourth Amendment - but then refuse to suppress the fruits of the search using the rationale for applying the good-faith exception as was done in Aigbekaen. So, the lesson here is it great to be the one convincing the court to recognize the "new" privacy area - but it may not get your client much relief. You are paving the way for others down the road.
A challenge that new electronic devices present to law enforcement is that they must be aware of the demands of the Fourth Amendment, interpret how it applies to new technology, and then apply the rules to a device that may not be "understanding" of how the Fourth Amendment demands that it be searched. It is one thing to "pop open" the truck or glove box in a car - not so much with that cellphone that packs an electronic punch with respect the volume and type of information it contains.
Such was the challenge in United States v. Cano, 934 F.3d 1002 (9th Cir. 2019). Cano was arrested for carrying cocaine as he attempted to cross into the United States from Mexico at the San Ysidro Port of Entry. Following his arrest, a Customs and Border Protection official seized Cano's cell phone and searched it, first manually and then using software that accesses all text messages, contacts, call logs, media, and application data. When Cano moved to suppress the evidence obtained from the warrantless searches of his cell phone, the district court held that the searches were valid under the border search exception to the Fourth Amendment's warrant requirement. Applying precedent in the Ninth Circuit in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), the Cano Court concluded that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. It noted that it was clarifying Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband and that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband. It held that the law enforcement officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search. Accordingly, it held that most of the evidence from the searches of Cano's cell phone should have been suppressed.
Cotterman dealt with laptop searches at the border. The Cano opinion put laptops and cellphones on the same footing. Cotterman was a United States citizen returning to the United States from Mexico. When he reached the port of entry, border officials noted that Cotterman had various convictions for sexual conduct with children. Concerned that Cotterman might be involved in child sex tourism, officials conducted a brief search of his laptop computers and digital cameras and noted that the laptops had password-protected files. The officials detained the computers for several days in order to run a comprehensive forensic search of the hard drive, which revealed hundreds of images of child pornography. The Court explained that “the legitimacy of the initial search of Cotterman's electronic devices at the border [was] not in doubt,” “[t]he difficult question ... [was] the reasonableness, without a warrant, of the forensic examination that comprehensively analyzed the hard drive of the computer.”
The Cano Court acknowledged the “substantial personal privacy interests” in “[e]lectronic devices ... capable of storing warehouses full of information.” At the same time, it recognized “the important security concerns that prevail at the border” and the legitimacy of “[t]he effort to interdict child pornography.” It held that a routine, manual search of files on a laptop computer—“a quick look and unintrusive search”—is reasonable “even without particularized suspicion,” but that officials must “possess a particularized and objective basis for suspecting the person stopped of criminal activity” to engage in a forensic examination, which is “essentially a computer strip search.” It concluded that reasonable suspicion was “a modest, workable standard that is already applied in the extended border search, Terry stop, and other contexts.” Cotterman’s reasoning applies equally to cell phones and the Court recognized in Cotterman that digital devices “contain the most intimate details of our lives” and “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy,” and the Court found no basis to distinguish a forensic cell phone search from a forensic laptop search.
Concluding, the Court underscored its holding that the manual searches of cell phones at the border are reasonable without individualized suspicion, whereas the forensic examination of a cell phone requires a showing of reasonable suspicion.
The cases reviewed in this article are but a snapshot of the issues the courts are confronting as new technology confronts traditional concepts of what constitutes a "reasonable expectation of privacy." Just as one might keep a sharp eye out for that drone that may be hovering outside your bedroom window - we should keep a keen eye for how to raise and address new Fourth Amendment privacy concerns as advances in technology continue to affect our daily lives.
]]>MarcusBonsib, LLC
In December, 2019 I posted a blog reviewing a decision of the Maryland Court of Special Appeals ("COSA") in which the COSA affirmed the conviction of Lawrence Montague. At Montague's trial, the prosecution was permitted to use rap lyrics that Montague that were recorded on a jail call between Montague and a friend. Montague's friend on his recorded advises Montague that the world is ready to hear his rap and then tells Montague - "I'm ready to record you...it's going on my Instagram so you're on live with me right now." Montague's friend warned him about the risk of recording the lyrics and publishing them on social media to which Montague, with a boldness that was not matched by common sense, responded: "I'm gucci. It's a rap. F--k they can do for -- about a rap.?" Well - the COSA and now the Maryland Court of Appeals ("COA") - have made clear to Montague what they could do about his lyrics - and the short answer is that they have guaranteed that Mr. Montague will have 50 years to consider the wisdom of sharing his "artistic" recording with the social media world. His "freedom of speech" will be providing him 50 years of free room and board. In its opinion, the COA instructed that there are two guiding principles that will govern the admissibility of such evidence: (1) even when there is probative value to the evidence, does the rap lyric even have an inherent prejudicial effect, and; (2) does the probative value of rap lyric evidence outweigh that prejudicial effect when the lyrics bear a close nexus to the details of the alleged crime? The trial court is required to assess whether there is a "strong nexus between the specific details of the artistic composition and the circumstances of the offense for which the evidence is adduced." Where such a nexus exits, and a jury can "reasonably view the lyrics as factual, not fictional," the risk of improperly admitting the lyrics as propensity evidence of the defendant's bad character significantly decreases. A close temporal nexus bolsters the admissibility of rap lyric evidence. The COA acknowledged that "stop snitching" is a theme that is common to rap as a genre and, like rap music generally, may be misinterpreted by a jury and improperly used as propensity evidence - but it further notes its disagreement with the position that "stop snitching" references always undermine the probative value of rap lyric evidence. It further noted that "[r]ap lyrics that have a factual and temporal nexus to the details of the alleged crime are more probative of a defendant's guilt when those same lyrics contain "stop snitching" references that are published to threaten witnesses to the crime." Here the COA affirmed Montague's conviction concluding that "[g]iven the close nexus between Mr. Montague's rap lyrics and the details of [the victim's] murder, the lyrics make it more probable that Mr. Montague was the shooter.]]>As Judge Moylan begins the Court's opinion in State v. White, No. 0891, SEPT.TERM, 2019, 2020 WL 5834924 (Md. Ct. Spec. App. Oct. 1, 2020) he invites us to embark on what he describes as a "three-dimensional Fourth Amendment voyage" allowing Ontavious Deshard White to be "our Odysseus." Id. at *1. "[O]n such a full sea are we now afloat" because not only does this appeal present "with three different Fourth Amendment problems" but "[t]he particular combination of issues before us in this case...is one where each of the questions before us engages the gears of an entirely separate and distinct level or plane of Fourth Amendment inquiry." Id. Each of these distinct planes are: I. The Coverage or Applicability of the Fourth Amendment II. The Merits or Substance of the Fourth Amendment III. The Sanction, If Any, for a Fourth Amendment Violation
The Standard of Review
The standard of review applied by the Court in considering motions to suppress evidence under the Fourth Amendment is "limited to the record developed at the suppression hearing" and that the record is assessed "in the light most favorable to the party who prevails on the issue that the defendant raises in the motion to suppress." Id. at *5. The motion court's factual findings are accepted unless clearly erroneous, however, COSA will review de novo the "court's application of the law to its findings of fact." Id. Regarding the burdens on each party at a suppression hearing, if the State makes a timely challenge to standing in the first instance, the burden is on the defendant to prove Fourth Amendment applicability to the situs of the search as well as the person who performed the search. When challenged, the defendant must also establish the Fourth Amendment coverage of himself under the circumstances. Id. at *6. Once the defendant meets his burden to establish standing, the burden to justify a warrantless search then shifts to the State. As is discussed further herein, the failure of the State to make a proper and sufficient evidentiary record to justify a warrantless search is fatal.Statement of the Facts
Officer Robert Padgett of the Anne Arundel County Police Department was tasked with locating and arresting White on an open arrest warrant charging White with armed carjacking, unlawful taking of a motor vehicle and handgun offenses. While on surveillance Officer Padgett observed White exit an apartment, enter a leased Elantra vehicle, drive to a car wash, and pull the vehicle into the third bay of the car wash. Officers positioned themselves on either side of the bay and White was subsequently arrested without incident. White advised that the vehicle belonged to his girlfriend, however, Officer Padgett knew it was a leased vehicle that belonged to "All Car Leasing," that it had been leased to a Roxanne Douglas ("Douglas"), and that the lease had expired one day prior to the stop. According to Officer Padgett, the car was searched "based off evidence related to the armed carjacking" and at the time of the search, White stood about ten feet behind the vehicle, within the car wash bay. A handgun was recovered from the vehicle. Douglas had loaned the car to White who was the sole occupant and driver of the vehicle when it left the apartment building.Standing to Object
The White opinion first addresses the issue of whether White had standing to object to the search of a borrowed automobile that he was driving at the time he was stopped by the police. Standing is the "threshold question of the entitlement to litigate the merits of the search and seizure" and it is "exclusively a threshold question of applicability, concerned only with the coverage by the Fourth Amendment of the defendant who seeks to raise a Fourth Amendment challenge. Id. at *7. The question in every case of standing "depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Id. (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978) (addressing the Fourth Amendment rights of passengers in vehicles)). The White Court reviewed the Supreme Court's decision in Byrd v. United States, --- U.S. ----, 138 S.Ct. 1518 (2018). In that case, Byrd was stopped outside Harrisburg, Pennsylvania by Pennsylvania State Troopers while driving a vehicle rented in another's name. After learning that Byrd was not listed on the rental agreement as an authorized driver, that he had prior drug and weapons convictions, and that Byrd admitted he had a marijuana cigarette in the vehicle at the time, the troopers searched the rented vehicle and discovered body armor and 49 bricks of heroin in the trunk. The lower courts denied Byrd's motion to suppress the evidence, concluding that he lacked a reasonable expectation of privacy in the car. After citing general principles on standing, the Supreme Court observed: One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others. On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it 'creates too broad a gauge for measurement of Fourth Amendment rights.' Id. at *7-8 (citing Byrd, 138 S.Ct. at 1527 (internal citation omitted)). The two concepts in cases like this one are often linked. 'One of the main rights attaching to property is the right to exclude others,' and, in the main, 'one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.' This general property-based concept guides resolution of this case. Id. at *8 (citing Byrd, 138 S.Ct. at 1527 (internal citation omitted)). Similar to Byrd, White was a driver and the sole occupant of a rented vehicle who had lawful possession of the vehicle. Noting that the Supreme Court [S]ees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of the defendant in Jones v. United States, 362 U.S. 257, 267 (1960)...owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude. Id. at *9 (citing Byrd, 138 S.Ct. at 1528-29 (internal citation omitted)). [T]he mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. Id. at *9 (citing Byrd, 138 S.Ct. at 1531). Although White he was not listed on the leasing agreement, and although that contract had expired, applying Byrd, the White Court held that White had a legitimate expectation of privacy in the vehicle and concluded that the motion court erred in concluding that White did not have standing to challenge the search. Id. at *10.Search of the Elantra
"[A]n arrest warrant cannot be substituted for a search warrant." Faulkner v. State, 156 Md.App. 615, 642 (2004)), White was arrested on the basis of a valid outstanding arrest warrant. However, the arrest warrant was based on a crime that had occurred 10 miles away and 18 days earlier and the arrest warrant did not authorize a search of the Elantra. Accordingly, "the burden devolved upon the State to show that the warrantless search of the Elantra was reasonable pursuant to one of the jealously guarded exceptions to the warrant requirement." White, at *10. Judge Moylan then listed the potential exceptions: 1. Search Incident to a Lawful Arrest. Chimel v. California, 395 U.S. 752 (1969). 2. The Carroll Doctrine or Automobile Exception. Carroll v. United States, 267 U.S. 132 (1925); See also Moylan, "The Automobile Exception: What It Is and What It Is Not-a Rationale in Search of a Clearer Label," 27 Mercer L.Rev. 987 (1976). 3. Hot Pursuit and Emergency Circumstances. Warden v. Hayden, 387 U.S. 294 (1967). 4. Stop and Frisk. Terry v. Ohio, 392 U.S. 1 (1968). 5. Plain View Doctrine. Coolidge v. New Hampshire, 403 U.S. 443 (1971); Arizona v. Hicks, 480 U.S. 321 (1987). 6. Consent. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Illinois v. Rodriguez, 497 U.S. 177 (1990). 7. The Special Exception of Arizona v. Gant. 556 U.S. 332 (2009). With respect to Arizona v. Gant, Judge Moylan regards this as "an arguably additional exception that is difficult to characterize" and the one that the State relied upon in White to justified the warrantless search of the vehicle. White, at *11. According to Judge Moylan the Gant opinion concludes with two separate and very different rationales: one of them fits neatly into a pre-existing and larger totality (search incident to a lawful arrest), while the other, which he describes as a "special ad hoc exception" to the warrant requirement, does not. Id. at *12. Gant held that police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Judge Moylan noted the White case does not deal with the arrestee being within reaching distance of the passenger compartment at the time of the search. Rather, the case concerns whether it is reasonable to believe the vehicle contains evidence of the offense of arrest. Gant authorizes the search of an automobile for evidence of crime upon a likelihood that such evidence is present in the car, whereas, the Carroll doctrine requires that the likelihood satisfy the probable cause standard. The Gant special ad hoc exception lowers the bar of likelihood to one of reasonable suspicion, but it does insist, unlike the Carroll doctrine, that the likelihood that such evidence exists occurs in conjunction with an arrest. The Carroll Doctrine permits a search of the entire car including the trunk, but the Gant exception limits the search to the passenger compartment. The Carroll Doctrine places no limits on the character of the suspected evidence, but the Gant exception limits the predicate for the search to "evidence of the offense of arrest." The Gant exception is neither an outgrowth of the Carroll Doctrine, nor an outgrowth of search incident law. White, at *12. The purpose served by the Gant exception is the discovery of evidence bearing on the crime for which the arrest is made. That is not remotely the purpose of a search incident. The purpose of the search incident exception is to regulate the behavior of the arrestee in the course of his being arrested. It serves the twin purposes of 1) preventing the arrestee from grabbing a weapon and harming the arresting officer, and 2) preventing the arrestee from destroying any accessible evidence. Such evidence, moreover, can be evidence of any crime and need not be related to the crime for which the arrest was made. If, in the words of Gant's first rationale, "the arrestee is within reaching distance of the passenger compartment," the passenger compartment is ipso facto within Chimel's universally recognized "reach, lunge, or grasp" of the arrestee. If White can reach it, it is within his reach, however, it is the second of Gant's rationales that the White opinion addresses. When the Elantra was searched in this case, White was standing "at least ten feet away" from the vehicle and was, moreover, standing behind a small wall surrounding the carwash bay. White was arrested as a suspect in an armed carjacking that had occurred 18 days prior to the arrest and at least twenty miles away from the original. The Court of Special Appeals agreed with the analysis of the trial in rejecting the State's argument that the circumstances justified the search under the second Gant rationale. White, at *14. The trial court found that "both geographically and temporally, it's too attenuated to apply that prong of Gant."The Sanction, If Any, For A Fourth Amendment Violation
Ordinarily the sanction for a Fourth Amendment violation would be the suppression, via the exclusionary rule, of the evidentiary fruit of the violation. However, there are instances in which the Supreme Court has decided that the prejudice suffered by the defendant from the violation is non-existent, or, at least, is not so severe as to make appropriate the heavy sanction of suppressing the evidence. Judge Moylan identified and discussed three such recognized exceptions or exemptions. 1. Attenuation of Taint: Attenuation of taint exception recognizes that, even granting a Fourth Amendment violation, sometimes the causal connection between the violation and the ultimate recovery of the evidence is so attenuated by time and space and intervening circumstances that the exclusion of evidence is too high a price to pay for a violation that only modestly contributed to the recovery of the evidence. 2. Independent Source: The independent source exception recognizes the circumstance where the Fourth Amendment violation, albeit unquestionably having occurred, turns out to be redundant. It is applicable when, notwithstanding the Fourth Amendment violation, the police had already obtained the incriminating information from an independent source, completely free of any unconstitutional taint. 3. Inevitable Discovery: The inevitable discovery exception permits the government to cleanse the fruit of poison by demonstrating that the evidence acquired through improper exploitation would have been discovered by law enforcement officials by utilization of legal means independent of the improper method employed. It is this third exception that the State sought to rely upon in White. In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) the Supreme Court explained the rationale for the inevitable discovery exception and stated that if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings because the State has gained no advantage at trial and the defendant has suffered no prejudice. Judge Moylan, quoting from Williams v. State, 372 Md. 386 (2002) reviewed Judge Raker's analysis of the differences between inevitable discovery and independent source where she noted that: There is a close kinship between inevitable discovery and independent source but although they are closely related, they are analytically distinct. ... The two doctrines differ in that 'under the independent source doctrine, evidence that was in fact discovered lawfully, and not as a direct or indirect result of illegal activity, is admissible.' Under the inevitable discovery doctrine, evidence is admissible that inevitably would have been discovered through lawful means even though the means that led to its discovery were unlawful. White, at *17 (citing Williams, 372 Md. at 410-11). Judge Moylan addressed the issue of inevitable discovery to the specific facts, and more particularly to the record, in White, reminding that when the State seeks to rely upon an exception, such as inevitable discovery, it is the State that bears the burden to prove with respect to the applicability of the exception and that, In reviewing a claim of inevitable discovery, the key issue is the inevitability factor. The key procedural factor is that the burden of proof is on the State to establish inevitability, not upon the defendant to disprove it. A scenario wherein very little is said one way or the other by either party argues strongly against the State. White, at *19. In White the Court found that "very little is said" in the record and the State suffered the consequence of its failure to make a sufficient record. It is not clear as to whether this failure was the result of there not being sufficient facts available to support the applicability of the exception or whether the State simply failed to make a proper record. "The inevitable discovery scenario urged by the State in this case is that at the time of [White's] arrest, the Elantra was blocking the flow of business at the car wash and had to be removed from that position." White, at *18. The State's argument was that: Because of the status of the car being a leased vehicle that's a day after it was due, not leased to the Defendant, there's no evidence that he was even authorized to drive it, the officers in that case had the ability to then tow the vehicle. There was nobody immediately available to come get it that they knew of, and I believe because of the background research that they did on the vehicle, knowing that it was leased, knowing that it was expired, they intended to tow the vehicle, which would have inevitably led them to have to do an inventory search to protect themselves and whoever took the vehicle from any valuables, and this gun was in a location which would have naturally been searched in an inventory search, that being on the passenger seat, and they would have found the gun that way, Your Honor. White, at *18 (emphasis supplied in White). The issue for COSA was whether that posited scenario was, indeed, inevitable. COSA concluded that it was not. "The primary problem with the State's inevitable discovery argument in this case is that it takes too much for granted." Id. However, inevitable discovery "is not the norm" and the burden of proof is cast upon the State to prove its entitlement to the exception. Id. COSA found that the State's justification was [E]xceedingly skimpy and was exceedingly conclusory...as if the mere mention of 'towing the car' was an 'Open, Sesame' proclaiming all that need be said about what can be a complicated and nuanced community caretaking function. The burden of proof contemplates more than intoning some magic words. The notion, however, seems to have arisen that once an officer testifies that he intends to tow the car, the entire Inevitable Discovery Doctrine falls automatically into place. It doesn't. On the road to Inevitable Discovery, the State's burden of proof involves more than negotiating a barely discernible speed bump. An intent to tow the car is not a shibboleth. Id. at *19. "The key procedural factor is that the burden of proof is on the State to establish inevitability, not upon the defendant to disprove it." Id. COSA was not convinced that it was inevitable that the Elantra would have been impounded and towed away by the police, rather than parked on an adjoining street. The transcript did not reflect that any police regulation forbade such an action, nor was it something of which the court would take judicial notice. Id. Aside from the inevitability of the impoundment, there was an "additional inevitability issue of equal, if not greater, significance" - the ultimate inventory search itself and the attendant preparation of an inventory list. The towing procedure does not speak for itself, but must be established by the State. In this case, the Elantra was never towed, no inventory search was ever made, and no inventory list was ever supplied to anyone (at least as far as this record reflects). Id. "If the towing was inevitable, why did it not happen?" and "why was the court not told about it?" The State did not prove a case of inevitable discovery. CONCLUSION To quote directly from Judge Moylan's concluding paragraph of the opinion in White, "[o]n this appeal, [White], notwithstanding his laconic original contention, has truly covered the entire Fourth Amendment universe. To the three bedrock questions he has posed, we supply the following answers." White, at *21. I. Was the Fourth Amendment applicable? Yes. Byrd v. United States, adequately established that White enjoyed standing to object to the search of the borrowed car he was driving when stopped. II. Was the Fourth Amendment satisfied on its merits? No. The warrantless search of the car did not qualify for the special Gant exception to the warrant requirement. Presumably, the exclusionary rule will be the sanction. III. Did the State qualify for the Inevitable Discovery exemption from the sanction of the exclusionary rule? No. The State failed to prove that either the towing of the automobile or an inventory search of the automobile was inevitable. Id.]]>By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.
Attention federal practitioners! The Fourth Circuit opinion in United States of America v. Raymond Idemudia Aigbekaen, (decided November 21, 2019), in which the Court held that the warrantless forensic search of the defendant's electronic devices which were seized at the border, (JFK International Airport), was a highly intrusive nonroutine search which had no nexus to the border search exception's historical purposes and therefore was a violation of the defendant's 4th Amendment rights. Because this case was the first to make such a holding, the Government in this case was saved by the good-faith exception to the exclusionary rule. However, the government, in future cases post-Aigbekaen, may not be able to rely upon "good-faith" arguments to save this type of border search.
Overview
In April, 2015, a minor alerted law enforcement officers that Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states. As part of their investigation, when Aigbekaen returned to the United States from traveling abroad, the Government seized Aigbekaen's MacBook Pro laptop, iPhone, and iPod and conducted warrantless forensic searches of the data on all three devices. Aigbekaen was subsequently charged with sex trafficking and related crimes. At the conclusion of a jury trial, he was convicted of these crimes.
Aigbekaen's contention on appeal was that the warrantless forensic searches of his digital devices violated the 4th Amendment. The Government countered that the searches fell within the "border search" exception to the warrant requirement and that, in any event, suppression was not appropriate.
The Fourth Circuit agreed with Aigbekaen that the border search exception does not extend to the challenged searches, rendering them unconstitutional. However, the Court agreed with the Government that the good-faith exception to the exclusionary rule bars suppression and, therefore, the Court affirmed.
Facts
On April 12, 2015, a sixteen-year-old girl, "L.," called 911 from a Homewood Suites hotel in Bel Air. L. reported that she had run away from home and was looking for help. An officer arrived on scene and L. disclosed that two men, one named Marcell Greene, and another of Nigerian ethnicity named "Raymond," had transported her around Maryland, Virginia, Long Island, and New York; had posted ads of her on Backpage.com; and had trafficked her for sex. L. provided phone numbers for these men and identified Greene and Aigbekaen in hotel surveillance footage. L. also recognized images of herself from online prostitution ads. Homewood Suites records showed that Aigbekaen had rented L.'s hotel room. Officers searched the room and found used condoms.
Local law enforcement officers sent their case file to Homeland Security Investigations (HSI), an investigative arm of the U.S. Department of Homeland Security. HSI subpoenaed Verizon and Backpage. The companies' responses confirmed that the phone number L. had provided belonged to Aigbekaen, and that this number was listed as a contact on the Backpage prostitution ads. The Backpage ads were linked to two Yahoo! email addresses, each of which contained portions of Aigbekaen's name. Rental car and hotel records further showed that Aigbekaen had traveled to hotels in Maryland, Virginia, and Long Island.
HSI agents learned that Aigbekaen had left the country and was returning through John F. Kennedy International Airport. The agents asked U.S. Customs and Border Protection officers to seize any electronic media devices in Aigbekaen's possession at the airport upon his return. On May 19, 2015, the officers, without warrants, seized Aigbekaen's MacBook Pro laptop computer, iPhone, and iPod, and transported the devices to Baltimore, where an HSI agent created and reviewed a forensic image of each device. HSI did not return the devices to Aigbekaen until June 2, 2015.
A forensic search is capable of not only viewing data that the user has intentionally saved on a digital device, but also unlocking password-protected files, restoring deleted material, and retrieving images viewed on websites. The forensic search of the laptop revealed temporary backups of Facebook Messenger conversations between Aigbekaen and another user that related to sex trafficking.
A few months after the warrantless forensic searches, the Government secured and executed warrants for the same MacBook Pro and iPhone, Aigbekaen's Facebook and Yahoo! accounts, his vehicle, five additional cell phones, his DNA, and Greene's residence.
Aigbekaen was indicted on sex counts, all relating to interstate sex trafficking of L. and transportation of her for the purpose of prostitution. Prior to trial, Aigbekaen moved to suppress various pieces of evidence, including any evidence recovered from the May 2015 warrantless forensic searches.
At the suppression hearing, Aigbekaen argued that the forensic searches did not fall within the border search exception to the warrant requirement because "there has to be a point at which the nature of the government investigation is so separated and so divorced from anything related to the border" that the exception becomes inapplicable. Defense argued that the Government's "general interest in enforcing [domestic] criminal laws" does not constitute an interest justifying "border searches." The Government responded that, at the time of the forensic searches, it had reasonable suspicion both that Aigbekaen had trafficked L. for sex domestically and that he "might be bringing contraband in the form of child pornography into the country," citing for the latter argument only an "allegation form the manager of the hotel where the victim was recovered." The district court dismissed the Government's child pornography argument as "a lot weaker" but held that under "the traditional border search analysis," "the circumstances of where the property was and where the person was when the search occurred" "trump[ed]" any need to justify the specific search. As a result, the district court found that no warrants were required for the May 2015 searches. The district court further reasoned that if any individualized suspicion was needed to justify the "intrusive" forensic searches of Aigbekaen's devices, the Government met this standard because HSI had "at least" reasonable suspicion, if not probable cause, that the warrantless searches would reveal evidence of domestic sex trafficking.
The Historic Rationale of the Border Search Exception
The 4th Amendment requires that governmental searches and seizures be reasonable. In most cases, this requires a warrant based on probable cause. Riley v. California, 573 U.S. 373, 382 (2014). Riley held that the search incident to arrest exception was inapplicable to modern cell phones. Aigbekaen argued that Riley renders the border search exception categorically inapplicable to modern cell phones and analogous digital devices. However, after Riley it has been held that law enforcement officers may conduct a warrantless forensic search of a cell phone under the border search exception where the officers possess sufficient individualized suspicion of transnational criminal activity. United States v. Kolsuz, 890 F.3d 133, 148 (4th Cir. 2018).
The border search exception recognizes the Government's substantial sovereign interests in "protect[in]...territorial integrity" and national security, United States v. Flores-Montano, 541 U.S.149, 153 (2004); blocking "the entry of unwanted persons and effects," id. at 152, and "prevent[ing] the introduction of contraband." United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). "At a border" or its "functional equivalent, like [an] international airport...government agents may conduct routine searches and seizures of persons and property without a warrant or any individualized suspicion." Kolsuz, 890 F.3d at 137.
There are limits to the border search exception. Certain "highly intrusive searches" may qualify as "nonroutine" and require some level of individualized suspicion. Flores-Montano, 541 U.S. at 152 (citing Montoya de Hernandez, 473 U.S. at 541 n. 4). In Kolsuz, the Fourth Circuit held that "a forensic search of a digital phone must be treated as a nonroutine border search, requiring some form of individualized suspicion" even if not a warrant. Kolsuz, 890 F.3d at 145-46. The Supreme Court in Riley explained that "[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated" by physical searched because cell phones and other modern digital devices feature "an element of pervasiveness" that distinguishes them from physical records since these devices have "immense storage capacity," as well as cloud storage capabilities, and collect "in one place many distinct types of information...that reveal much more in combination than any isolated record.". 573 U.S. at 393-97.
In this case, the Fourth Circuit first had to decide: "Does the border exception even apply to the May 2015 forensic cell phone searches?" The Supreme Court and the Fourth Circuit have repeatedly explained, "the scope of a warrant exception should be defined by its justifications." Id. at 143 (citing Riley, 573 U.S. at 385-91); accord, e.g., Arizona v. Gant, 556 U.S. 332, 351 (2009).
Neither the Supreme Court nor the Fourth Circuit has ever authorized a warrantless border search unrelated to the sovereign interests underpinning the exception, let alone nonroutine, intrusive searches like those at issue in this case.
Kolsuz teaches that the Government may not "invoke[] the border exception on behalf of its generalized interest in law enforcement and combatting crime." 890 F.3d at 143. To conduct an intrusive and nonroutine search under the border search exception, the Government must have individualized suspicion of an offense that bears some nexus to the border search exception's purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband. Id. If a nonroutine search becomes too "attenuated" from these historic rationales, it "no longer [will] fall under" the exception, Kolsuz, 890 F.3d at 143, and in such circumstances, the search will be unconstitutional unless accompanied by a warrant or justified under a different exception to the warrant requirement.
The domestic sex trafficking had no transnational component and,therefore, the warrantless search lacked the requisite nexus to the historic rationales justifying the border search exception.
The Fourth Circuit applied the afore-mentioned principles to the facts at hand and concluded that the warrantless forensic search of Aigbekaen's devices lacked the requisite nexus to the recognized historic rationales justifying the border search exception. While the Government had probable cause to suspect that Aigbekaen had previously committed grave domestic crimes, "these suspicions were entirely unmoored from the Government's sovereign interests in protecting national security, collecting or regulating duties, blocking Aigbekaen's own entry, or excluding contraband." A finding that the border search exception were appliable here, based simply on knowledge of domestic crimes, would "untether" that exception from its well-established justifications. Riley, 573 U.S. at 386.
The Government argued that "[sex trafficking] is a crime 'commonly involving cross-border movements.'" However, the notion of individualized suspicion is some evidentiary basis for what a specific crime does involve in the individual case at hand, not just what it "commonly involves" as a general matter. In this case, the Government offered no reasonable basis to suspect that Aigbekaen's domestic crimes had any such transnational component.
The Fourth Circuit also rejected the district court's conclusion that a nonroutine, intrusive search's physical and temporal proximity to an international border "trumps everything" under the 4th Amendment. Although the Supreme Court has stated that routine border searches "are reasonable simply by virtue of the fact that they occur at the border," Ramsey, 431 U.S. at 616, in the context of "highly intrusive" nonroutine border searches, the Supreme Court has struck a "balance between the interests of the Government and the privacy right of the individual." Montoya de Hernandez, 473 U.S. at 540; see also Riley, 573 U.S. at 385. In Kolsuz, the Fourth Circuit clarified that a nonroutine search's location is not dispositive of whether the border search exception applies; rather, it is the search's relation to the Government's sovereign interests that this paramount. 890 F.3d at 142-43.
The Fourth Circuit reminded that "the ultimate touchstone of the Fourth Amendment is reasonableness," Riley, 573 U.S. at 381, and "it would be patently unreasonable to permit highly intrusive forensic Government searches of traveler's digital devices, without warrants, on bases unrelated to the United States's sovereign authority over its borders."
The Fourth Circuit held that where a search at the border is so intrusive as to require some level of individualized suspicion, the object of that suspicion must bear some nexus to the purposes of the border search exception in order for the exception to apply. Because no such nexus existed here, the warrantless, nonroutine forensic searches violated the Fourth Amendment.
The Good-Faith Exception to the Exclusionary Rule bars suppression in this case of any evidence tainted by any constitutional defect in the May 2015.
The Government argued that any constitutional infirmity in the May 2015 searches does not justify reversal because the good-faith exception to the exclusionary rule bars suppression. Aigbekaen countered that the lack of a nexus renders the good-faith exception inapplicable. The Fourth Circuit agreed with the Government.
Fruits of "a search conducted in reasonable reliable on binding precedent [are] not subject to the exclusionary rule," as that rule is designed "to deter future Fourth Amendment violations." Davis v. United States, 564 U.S. 229, 236-37, 241 (2011).
In this case, the HSI agents who searched Aigbekaen's devices in May, 2015 reasonably relied on an "established and uniform body of precedent allowing warrantless border searches of digital devices." Kolsuz, 890 F.3d at 148. No court had previously applied the principle of tailoring the warrant exception to require a warrant "for any border search, no matter how nonroutine or invasive." Only in 2018 did the Fourth Circuit recognize that "a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception" and so require a warrant. Kolsuz, 890 F.3d at 143. And only in the present case has the Fourth Circuit applied that principle to hold unconstitutional such an attenuated, warrantless, and nonroutine forensic search at the border.
Given the uniform body of precedent that permitted warrantless searches at the border in May, 2015, the Fourth Circuit concluded that the good-faith exception applies here.
Concurrence - Judge Richardson agreed with the judgment, but disagreed with the decision to declare the border search unlawful.
Judge Richardson wrote that the Supreme Court has repeatedly upheld border agents' broad discretion to conduct searches in sweeping terms, requiring only particularized suspicion for especially intrusive searches. The distinction between "routine" searches and highly intrusive "nonroutine" searches provides the analytical linchpin for determining whether particularized suspicion is required at the border.
The Supreme Court has suggested that only three highly intrusive situations may qualify as nonroutine: (1) highly intrusive searches of the person, (2) searches of property that are destructive, (3) and searches carried out in a particularly offensive manner. Flores-Montano, 541 U.S. at 152-56, 154 n.2.
The Court considers whether the subject of a search is a person or property. The Supreme Court has never actually held that any search of property, as opposed to persons, was "nonroutine." Judge Richardson suggests that the Supreme Court has set a high bar for when a property search might ever rise to that level. Judge Richardson also suggests that his own Court's holding in Kolsuz "may be controversial." In any event, Judge Richardson found that Kolsuz held that suspicion of transnational crime was sufficient to satisfy any potential "nexus" requirement and Kolsuz did not hold that such suspicion was necessary for a border search. Judge Richardson believes that the Majority overstates the case when it claims that Kolsuz held that "where a search at the border is so intrusive as to require some level of individualized suspicion, the object of that suspicion must bear some nexus to the purposes of the border search exception in order for the exception to apply." Judge Richardson writes that Kolsuz merely noted the possible existence of a "nexus" requirement and, assuming it existed, concluded it was satisfied.
Judge Richardson criticized the Majority's "nexus" requirement for coming into play only for the more intrusive "nonroutine" searches because it seeks to regulate what kind of particularized suspicion is required. The "nexus" requirement is inconsistent with the Supreme Court's border search cases which have limited the border search doctrine only when the intrusiveness of the search makes it unreasonable without particularized suspicion - not based on the government's interests or a "nexus" between these interests and the specific search conducted.
Judge Richardson also critiqued the Majority's application of Riley, which did not involve a border search exception. Lastly, Judge Richardson, in applying the "nexus" requirement established by the Majority, found that their view was too narrow. Just because Aigbekaen was suspected of being an interstate sex trafficker, did not mean he was not suspected of being an international sex trafficker. Police knew that Aigbekaen was a foreign national who trafficked underage girls across state lines for profit, and that while engaged in that business, he traveled abroad. Judge Richardson believed there was at least some reason to suspect that Aigbekaen's foreign travels were not purely personal, but professional as well. There were also reasonable grounds to suspect that Aigbekaen's electronic devices contained child pornography because he had posted suggestive photos of the underage victim on Backpage. Additionally, the hotel manager overheard Aigbekaen and his co-conspirator referring to a "movie" they were making. In sum, Judge Richardson found that there was reasonable suspicion that Aigbekaen had contraband and that his interstate crimes also had the "transnational" component the Majority would require.
Conclusion
This is an important case for federal practitioners. So often, concepts of "national security" are thrown around to support warrantless searches of persons and their property at airports and other points of entry. Where the warrantless search is of a cell phone, computer, or other electronic device, which makes the search "highly intrusive," it is imperative for the Government to prove a nexus between the suspected criminal activity and historical border search purposes. A defendant who has previously committed crimes strictly in the United States that do not relate to border protection, and who happens to be returning to the United States, cannot have their electronic devices forensically searched absent a warrant. The good-faith exception should not save future constitutional violations since the Government is now on notice of the law in the Fourth Circuit.
]]>So says the Maryland Court of Appeals in State v. Sample
By Robert C. Bonsib, Esq.
Maryland & Federal Criminal Defense Lawyer - Call me to discuss your case
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The Maryland Court of Appeals ("COA") approved the use of the act of "unfriending" on Facebook as evidence of Hayes Sample's involvement in an attempted robbery.
Sample and his alleged co-conspirator, Claude Mayo, were accused of attempting to commit a robbery of a liquor store in which Mayo was shot and killed by the liquor store clerk who, unfortunately for Mayo, also had a gun.
When detectives searched Sample's Facebook social media page they discovered that Sample "unfriended" Mayo after the robbery. It was the only one of Sample's Facebook friends that was "unfriended" in the seventeen-day period following the robbery. The attempted robbery occurred on December 7th at 6:50 pm. On the evening of December 8th the "unfriending" occurred.
Sample argued that there was insufficient evidence for a reasonable juror to find that the Facebook profile at issue belonged to Sample and that Sample used that Facebook profile to "unfriend" Mayo.
The COA first reminded that the standard of proof for authenticating social media is the preponderance of evidence standard - i.e. there must be sufficient circumstance evidence for a reasonable juror to find it is more likely than not that the social media evidence is what it is purported to be.
Link to full opinion -
https://www.courts.state.md.us/data/opinions/coa/2020/54a19.pdf
Of particular significance the COA noted that the circumstances present in this case included the fact that the "unfriending" occurred close in time to the robbery and that Sample had a motive to distance himself from Mayo - specifically he had denied knowing Mayo when he was interviewed by detectives. Additionally, during the seventeen-day period after the attempted robbery, of the 175 Facebook profiles listed as friends on Sample's Facebook profile, the Mayo profile was the only one that was "unfriended."
The COA reversed the decision of the Maryland Court of Special Appeals which had concluded that the trial court erred in admitting the "unfriending" evidence reasoning that it is was possible that someone other than Sample had used the Facebook profile to do the "unfriending."
The two primary issues in the Sample case were: (i) was there sufficient evidence to authenticate a Facebook profile as one belonging to Sample since the actual profile name was "SoLo Haze" and was there sufficient evidence to authenticate the Facebook profile "claude.mayo.5" as one that belonged to Mayo and (ii) was there sufficient evidence for the jury to conclude that Sample was the individual who, in fact, "unfriended" Mayo.
The COA reviewed the circumstantial evidence that connected Sample to the "SoLo Haze" Facebook profile and "claude.mayo.5" to Mayo. A review of the posts, pictures and other information located in each Facebook profile provided strong circumstantial evidence as to the ownership of each profile.
The COA also concluded that there was sufficient evidence to conclude that Sample was the one who "unfriended" Mayo, noting that Mayo was the only one "unfriended" in the two and one-half weeks after the attempted robbery. The "unfriending" occurred the day after the attempted robbery and Sample had the motive to sever ties with Mayo after the attempted robbery - particularly since there was evidence that Sample was the surviving attempted robber, i.e. Mayo's accomplice in the attempted robbery. This other evidence included surveillance video that showed the two men walking together about fourteen minutes before the crime, cell phone records showed a phone call from Sample to Mayo an hour before the attempted robbery and during Sample's interview with detectives he denied knowing Mayo.
The COA concluded that "[t]hese circumstances indicate that Sample was not a mere bystander or potential eyewitness to the attempted armed robbery. To the contrary, if believed, the State's argument ...demonstrated that Sample was Mayo's accomplice, and had reason to distance himself from Mayo by unfriending him on Facebook."
With respect to the possibility that someone other than Sample "unfriended" Mayo's Facebook profile, the COA stated that "[t]he State was not required to eliminate all possibiities that were inconsistent with authenticity, or prove beyond any question that Sample was the one who used the SoLo Haze Facebook profile to unfriend the claude.mayo.5 Fracebook profile. Instead, the State needed to prove only that there was sufficient evidence for a reasonable juror to find by a preponderance of the evidence, i.e., that it was more likely than not, that Sample was responsible for the unfriending."
The Sample opinion is just one more instance of the courts attempting to evaluate the proper place for social media evidence in the courtroom. The challenge is to balance the probative value of arguably relevant social media evidence against the need to be cautious about the use of social media evidence when such evidence must be considered with the understanding that the internet and social media evidence is not always what it appears to be.
]]>A Top 10 Maryland Super Lawyer - A Top 100 DC Super Lawyer,
Washingtonian Magazine - A Best Maryland Criminal Attorney
By Robert C. Bonsib, Esq. ([nap_phone id="LOCAL-REGULAR-NUMBER-2"])
Death resulting from distribution of a dangerous drug can subject the dealer to prosecution for involuntary manslaughter - but not in every case. The facts matter.
In State v. Thomas,464 Md. 133 (2019) the Maryland Court of Appeals ("COA") reversed the decision of the Maryland Court of Special Appeals ("COSA"), which had reversed Thomas' conviction for involuntary manslaughter for a death that resulted from the distribution of heroin, State v. Thomas, 237 Md. App. 527 (2018)
In Thomas the COA addressed the issue of whether the evidence was sufficient to sustain Thomas' manslaughter conviction where the evidence established that he distributed a quantity of heroin that was determined to have been ingested by a customer who ultimately died as a result of a heroin overdose and it is the seminal Maryland case on the standard for gross negligence involuntary manslaughter resulting from a fatal heroin overdose. Since Thomas, the COSA has issued two opinions further addressing the issue as to when the evidence is sufficient to support a conviction for involuntary manslaughter where drug distribution results in death. Johnson v. State, No. 109, Sept. Term ,2018, 2020 WL 502544, (Md. Ct. Spec. App. Jan. 31, 2020), reconsideration denied (Apr. 14, 2020) and McCauley v. State, No. 340, Sept.Term, 2018, 2020 WL 2069928,(Md. Ct. Spec. App. Apr. 29, 2020).
McCauley provides a good summary of the facts supporting the decisions of the courts in each of the three cases
McCauley noted that Thomas held that to support a conviction for gross negligence involuntary manslaughter from the sale of heroin, (1) the defendant must have known, or should have known under the reasonably prudent person standard, that the underlying act of selling heroin carried a severe risk of harm, and (2) the sale of heroin must be the actual and legal cause of the victim's death. Further, the COA's analysis in Thomas began from the premise that selling heroin is inherently dangerous but the COA also held that selling heroin is not enough in itself to support a finding of gross negligence involuntary manslaughter, and the COA declined to recognize "a per se rule providing that all heroin distribution resulting in death constitutes gross negligence ...." ("[D]istribution, alone, does not always amount to gross negligence."). Instead, Thomas weighed "the inherent dangerousness of the act and environmental risk factors" to decide whether the sale amounts to a "high degree of risk to human life." The environmental risk factors discussed in Thomas fell into two groups: the vulnerability of the buyer and the dealer's experience and knowledge.
Even under the facts of Thomas, the COA noted that a death resulting from the ingestion of heroin provided by another person is not, per se, sufficient to support a manslaughter conviction, but it found that under the totality of the circumstances presented in the Thomas case, that the evidence was sufficient.
In Thomas it was more than reasonably foreseeable that an individual ingesting a dangerous street drug might suffer devastating consequences. The COA observed that the knowledge in the community at large regarding the prevalence of drug related deaths has been extensive. To one, like Thomas, that knowledge is inevitably even greater.
Even with the more egregious facts in Thomas, all three judges of the COSA concluded that that evidence was insufficient to support the manslaughter conviction. In the COA, three of the seven judges would have reversed Thomas' conviction. In total, six judges believed that the evidence in Thomas was insufficient (the three judges on the COSA and three of the four judges on the COA). Only four judges on the COA (recognizing that those four judges ultimately had the final word) thought the evidence was sufficient.
The COA in Thomas also further explained that:
"The State must also demonstrate a "causal connection between such gross negligence and death ... to support a conviction, although it is not essential that the ultimate harm which resulted was foreseen or intended." Albrecht, 336 Md. 475, 499 (194) (citation omitted). This includes actual, but-for causation and legal causation. The legal cause analysis "turns largely upon the foreseeability of the consequence" of the defendant's acts or omissions and whether "the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant." Palmer v. State, 223 Md. 341, 352-53 (1960)."
In sum, the Thomas opinion instructed that when determining whether an individual has acted with the requisite grossly negligent mens rea to be found guilty of involuntary manslaughter, the State must demonstrate wanton and reckless disregard for human life. This requires a gross departure from the conduct of an "ordinarily careful and prudent person" and a disregard or indifference to the rights of others. It also involves an assessment of whether an activity is more or less "likely at any moment to bring harm to another," as determined by weighing the inherent dangerousness of the act and environmental risk factors. This weighing must amount to a "high degree of risk to human life"-falling somewhere between the unreasonable risk of ordinary negligence and the very high degree of risk necessary for depraved-heart murder.
The clear "take-away" from Thomas opinion is that while it concluded that the evidence was sufficient, considering the totality of the circumstances present in Thomas, it was a close call
After Thomas, in Johnson and McCauley, the COSA considered differing fact patterns with differing results as to whether the evidence was sufficient to support a conviction of involuntary manslaughter where the distribution of drugs resulted in a death.
Reviewing the facts upon which the Thomas, Johnson and McCauley courts relied upon is instructive. The COSA in McCauley summarized the significant facts in each case.
The primary risk factors to be considered after Thomas fell in two main groups: (1) the vulnerability of the buyer, or in the Court's language, his "desperation," and (2) the dealer's experience and knowledge:
Facts in State v. Thomas
Desperation/Vulnerability of Victim
• Mr. Thomas knew the decedent was a "young boy" who had been in prison in the past, and he believed him to be nineteen-years-old.
• Mr. Thomas was fifty-eight years old.
• The decedent called Mr. Thomas twenty-seven or twenty-eight times in less than a half hour period to purchase drugs.
• Mr. Thomas only answered one of those calls.
• Mr. Thomas and the decedent met at an unusual time, past midnight, when the pair usually met earlier.
Dealer's Knowledge/Experience
• Mr. Thomas was a "systematic and sustained heroin distributor" who "consistently distributed heroin to a substantial network of associates."
• Mr. Thomas was not an "infrequent or inexperienced provider."
• Mr. Thomas was a heroin abuser himself.
• Mr. Thomas purchased a high volume of heroin, fifty to sixty bags, in Delaware every two to three days.
• Mr. Thomas was in possession of 13.10 grams of heroin when he was arrested.
Relying upon these facts, the Court held that Thomas' conduct rose to the level of gross negligence
Facts in Johnson v. State
Desperation/Vulnerability of Victim
• Mr. Roe and Mr. Johnson were very close in age-Mr. Roe was twenty-three when he died and Mr. Johnson was twenty-four.
• Mr. Roe and Mr. Johnson were friends.
• Mr. Roe texted Mr. Johnson twenty-six times between 11:58 a.m. and 9:22 p.m., nearly a nine-and-a-half-hour period.
• Mr. Johnson was engaging Mr. Roe in conversation during that period and the attempt at communication was not one-sided.
Dealer's Knowledge/Experience
• Mr. Johnson was not a "systematic and sustained heroin distributor."
• Nothing in the record suggests Mr. Johnson sold drugs at any other time.
• Mr. Johnson used heroin less than Mr. Roe.
The COSA continued to further describe Johnson's role.
"Mr. Johnson was not in a position of power over Mr. Roe. The record reveals no reason for him to believe that Mr. Roe was at a heightened risk of harm, beyond the risk inherent in the act of buying and using heroin. Nothing in the record suggests their meeting was unusual or contains any signs that Mr. Roe was desperate. Instead, two friends split drugs after talking throughout the day about how they were going to acquire them.
Similarly, the record reveals no knowledge or experience as a drug dealer on the part of Mr. Johnson. The defendant in Thomas traveled to Delaware to purchase drugs in bulk two to three times a week and had many buyers. Here, the record reveals only one drug sale: the sale to Mr. Roe. Although, as an addict, Mr. Johnson obviously had experience buying and using heroin beyond that sale, there was no evidence suggesting, let alone proving, that he was an active, higher volume drug dealer, or that he had any greater awareness of or opportunity to know the drugs' content than Mr. Roe did."
Facts in McCauley v. State
The COSA, in its McCauley opinion, pointed out that McCauley's knowledge and experience as a dealer increased the risk of the sale substantially. And her knowledge of the high level of danger was sufficient for a jury to elevate to a finding of gross negligence.
Dealer's Knowledge/Experience
• Ms. McCauley sold Mr. Wrightson what she said was a mixture of heroin and fentanyl;
• On June 23, 2017, she knew that Mr. Wrightson and Ms. Miller were traveling together to pick up what Mr. Wrightson called "[s]ome of the heroin/Fentanyl" from Ms. McCauley's home;
• In 2017, Ms. McCauley and Mr. Wrightson had overdosed from fentanyl together;
• She was a routine dealer, selling to at least five individuals: Ms. Miller, Mr. Wrightson, Ms. Boswell, Sgt. Heath, and Mr. Tangradi;
• She knew that Mr. Wrightson had overdosed four times from fentanyl she sold him and, when told, she said, "that's horrible," "be careful," "don't do too much," and "it's strong";
• On June 18, she sold Ms. Boswell carfentanil, but told her it was fentanyl, and warned her to "be careful" and "don't do too much";
*5 • On June 21, 2017, when she sold Sgt. Heath fentanyl, she "immediately" cautioned him "to be careful" and to start with "just a fucking flake" of the fentanyl because it was "that strong." She also told him, "please don't die."
• On June 30, 2017, Ms. McCauley sold Sgt. Heath what she acknowledged to be fentanyl.
The COSA further described McCauley as an experienced dealer and noted:
"The record in this case demonstrated that Ms. McCauley knew that the drugs she sold had caused multiple people, including herself, to overdose. She knew the actual and highly dangerous contents of the drugs she sold. In the past, she knowingly sold heroin containing fentanyl, a dangerous analog of heroin, and knew or should have known that she sold drugs containing carfentanil, a tranquilizer significantly more potent than Fentanyl used to sedate rhinos and other large animals. She knew the drugs she sold were so dangerous that she warned many of her buyers of their potency. Ms. McCauley's knowledge of the extreme dangerousness of the drugs she sold raised the risk level from her transaction with Ms. Miller to one in which a jury could find a reckless, wanton disregard for human life."
Conclusion
These cases make clear that an "experienced" drug dealer, particularly where the drug being distributed is well known to be potent and potentially dangerous, faces the very real possibility to being convicted of involuntary manslaughter where the buyer dies. Not only does the saying "let the buyer beware" apply - but also "let the dealer beware."
]]>BY TOP MARYLAND CRIMINAL LAWYERS
By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.
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Like Josh Allen[1] to Tom Brady[2]...Gross Negligence Manslaughter is the "Junior Varsity"[3] to Depraved Heart Murder...Unlawful Act Manslaughter is the "Junior Varsity"[4] to Felony Murder.
In this articel we will be exploring various types of manslaughter and murder in Maryland. We will review involuntary manslaughter, second-degree depraved heart murder, and felony murder.
INVOLUNTARY MANSLAUGHTER
In Maryland, involuntary manslaughter is a common law felony, but the punishments are assigned in accordance with Maryland Code § 2-207(a) of the Criminal Law Article. Thomas v. State, 464 Md. 133, 152 (2019).
Involuntary manslaughter is the unintentional killing of a human being, irrespective of malice. Id. (citing State v. Albrecht, 336 Md. 475, 499 (1994)).
There are three varieties of involuntary manslaughter: (1) Unlawful Act Manslaughter; (2) Gross Negligence Manslaughter; and (3) Negligent Omission to Perform a Legal Duty. Thomas, 464 Md. at 152 (citing Albrecht, 336 Md. at 499).
Unlawful Act Manslaughter
(1) Committing a misdemeanor that unintentionally causes death.
Unlawful act manslaughter, or misdemeanor manslaughter, occurs where one commits a criminal act not amounting to a felony that unintentionally causes the death of another. Schlossman v. State, 105 Md. App. 277, 284 (1995), cert. dismissed as improvidently granted, 342 Md. 403 (1996), overruled on other grounds by Bailey v. State, 355 Md. 287 (1999).
(2) The misdemeanor must be malum in se and not merely malum prohibitum, if the act itself is not dangerous to human life.
"An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community." Garnett v. State, 332 Md. 571, 603 n. 12 (1993). It is an act that is wrongful in itself "without any regard to the fact of its being noticed or punished by the laws of the state." Black's Law Dictionary 959 (6th ed. 1990). Unlawful acts that are wrong only because they are prohibited by statute are considered to be malum prohibitum acts. Garnett, 332 Md. at 603 n. 12.
Professor David E. Aaronson in his book, Maryland Criminal Jury Instructions and Commentary, § 5.54(C), at 5-204 to -05 (3d ed. 2009), wrote that Schlossman held that an unlawful act can form the basis of involuntary manslaughter when the act was malum in se regardless of whether the act was dangerous to human life, or when the act was dangerous to human life, regardless of whether the act was malum in se or malum prohibitum. Where the act is a malum prohibitum act, the act must be dangerous to human life to suffice for misdemeanor manslaughter.
In Schlossman, the acts to be considered were poking a passed out homeless victim with a stick, urinating on him, and kicking dirt and trash on him. 105 Md. App. at 285. The Court found that these acts clearly establish that appellant committed a common law misdemeanor battery against the victim. Id. The medical examiner testified that the stress induced by the victim's altercation with appellant directly caused the victim to suffer a fatal heart attack; thus, there was evidence to the effect that appellant's criminal battery caused the victim's death.
The Court said that an intentional battery is an unlawful act that is malum in se. Id. (citing LaFave & Scott, Criminal Law § 7.13, at 681 (2d ed. 1986). Appellant's acts were not generally what would be considered acts "dangerous to life" so the Court had to determine whether an unlawful act that is malum in se, but is not itself dangerous to life, can support a conviction for involuntary manslaughter.
The issue was previously addressed by the Court of Appeals in Worthington v. State, 92 Md. 222 (1901) where Worthington was indicted for manslaughter for causing the death of the victim while performing an abortion on her. At that time, performing an abortion was a malum in se common law misdemeanor. Id. at 237. The Court explained that
[C]ausing the mother's death in attempting an abortion, is only manslaughter at common law, if the attempt is not made in a way that endangers the mother's life...[i]f the intent was to kill or grievously injure her the offense is murder. It is manslaughter if the intent was only to produce the miscarriage, the agency not being one from which death or grievous injury would be likely to result...[noting that] death is not now the usual...consequence of an abortion."
Id. at 237-39.
Therefore, under Maryland common law, a person could be guilty of involuntary manslaughter based on the commission of a criminal act that was malum in se but not considered to be dangerous to human life. Schlossman, 105 Md. App. at 286.
Other unlawful act manslaughter cases include Johnson v. State, 223 Md. App. 128 (2015), in which a woman struck the victim in his face with her fist, causing him to fall down on road, and died. The unlawful act was the battery form of second-degree assault which is malum in se and therefore the jury did not have to find that the defendant's assault endangered human life as a requirement to convict her of involuntary manslaughter. Id. at 151.
Rolfes v. State, 10 Md. App. 204 (1970) is an unlawful act manslaughter case where appellant assaulted her husband with a knife resulting in death. It was of no matter that the fatal injury was not foreseen and was inflicted unintentionally when they both fell or stumbled while the husband was attempting to take the knife and was stabbed in the chest.
In Tolen v. State, 242 Md. App. 288 (2019), the defendant pled guilty to involuntary manslaughter for distributing heroin that resulted in death, and distribution of heroin. In that case the Court of Special Appeals was called upon to determine whether she pled guilty to unlawful-act involuntary manslaughter, rather than gross negligence manslaughter, for purposes of determining whether her convictions for involuntary manslaughter and distribution of heroin would merge for sentencing purposes. The Court determined that Tolen was convicted of unlawful act involuntary manslaughter. The State's Bill of Particulars first set forth facts for voluntary manslaughter and then particularized "[i]n the alternative, the State intends to prove Involuntary Manslaughter: Unlawful Act. The State will prove that the Defendant committed an unlawful act prohibited by statute (distribution of heroin)...that was dangerous to life." Id. at 300. At the time of the plea, there was no further clarification of the legal basis of involuntary manslaughter. At sentencing, the sentencing court did not merge the two convictions, rather, the court sentenced Tolen to concurrent sentences. On appeal, the State argued that the manslaughter conviction could have been based upon a finding of gross negligence, and that it was not bound by only the legal theory it articulated in the bill of particulars. Id. at 302. The appellate court found that the State did not raise this alternate theory of gross negligence involuntary manslaughter until after the plea and there was nothing in the indictment or the State's answer to the demand for particulars that would have put Tolen on notice that the State intended to attempt to prove she was guilty of gross negligence involuntary manslaughter. The Court found that under the circumstances, the State should have known that Tolen's guilty plea was based upon the theory that she had committed the unlawful act of distributing heroin that caused the death of the victim. Therefore, the Court held that a conviction for the underlying unlawful act merges, for sentencing purposes, into a conviction of unlawful-act involuntary manslaughter. Id. at 305. The Court limited its merger analysis to that, and did not make a ruling based upon a conviction for gross negligence involuntary manslaughter.
(3) Unlawful Act Manslaughter is the "Junior Varsity Manifestation" of Felony Murder.
Judge Moylan noted that unlawful act manslaughter is the "junior varsity manifestation" of felony murder, and thus, "its rationale parallels that of the felony murder doctrine in every regard." Charles E. Moylan, Jr., Criminal Homicide Law § 11.1, at 207 (2018).
For causation purposes, death must occur "in the course of committing a crime or even a civil wrong." Schlossman, 105 Md. App. at 284. The Maryland Pattern Criminal Jury Instructions require that the State must prove that "that act resulting in the death of [the victim] occurred during the [commission] of the [unlawful act.]" Thomas, 464 Md. at 174 (citing § 4:17.9, at 705 (2018)). This is an "added 'continuous transaction' element to the causation requirement, as the perpetrator need not have any particular mens rea as to the death, but only that necessary to engage in the" unlawful act. Thomas, 464 Md. at 174.
Gross Negligence Manslaughter & Negligent Omission to Perform a Legal Duty
These two categories of involuntary manslaughter are often joined together as both require grossly negligent conduct which means that "the negligence [must] be criminally culpable." Thomas, 464 Md. at 152 (citing Mills v. State, 13 Md. App. 196, 200 (1971)).
"Gross negligence" equates to a "wanton or reckless disregard for human life." Thomas, 464 Md. at 153 (citing Charles E. Moylan, Jr., Criminal Homicide Law § 12.4, at 226 (2018); see also Albrecht, 336 Md. at 499).
"Gross negligence" mens rea is established by asking "whether the accused's conduct, 'under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others...'" Thomas, 464 Md. at 153 (citing Albrecht, 336 Md. at 500).
The defendant must commit an act "so heedless and incautious as necessarily to be deemed unlawful and wanton..." Thomas, 464 Md. at 153 (citing Albrecht, 336 Md. at 500). The act must "manifest[] such a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of indifference to the consequences." Thomas, 464 Md. at 153 (citing Albrecht, 336 Md. at 500). "[T]he defendant, or an ordinarily prudent person under similar circumstances, should be conscious of this risk." Thomas, 464 Md. at 154 (citing Albrecht, 336 Md. at 500; Dishman v. State, 352 Md. 279, 299 (1998)).
There must be an assessment of whether an activity is more or less "likely at any moment to bring harm to another," as determined by weighing the inherent dangerousness of the act and environmental risk factors. Thomas, 464 Md. at 160-61 (citing Johnson, 213 Md. at 532-33).
Overall, "there is no scientific test or quantifiable probability of death that converts ordinary negligence to criminal gross negligence. Rather, the inherent dangerousness of the act engaged in, as judged by a reasonable person - or reasonable officer - is combined with environmental risk factors which, together, make the particular activity more or less 'likely at any moment to bring harm to another.'" Thomas, 464 Md. at 159 (citing Johnson, 213 Md. at 533).
Maryland Courts have discussed gross negligence involuntary manslaughter in four main contexts: (1) automobiles; (2) police officers; (3) failure to perform a duty; and (4) weapons. Thomas, 464 Md. at 154.
(1) Automobiles
Common law gross negligence automobile manslaughter was preempted by statute in 1941 when the General Assembly enacted a law specifically defining "manslaughter by vehicle" as causing the death of another by "driving, operating, or controlling a vehicle...in a grossly negligent manner." Criminal Law Article § 2-209(b). State v. DiGennaro, 415 Md. 551, 565 (2010). Although the statute preempts common law, the Court of Appeals has stated that it involves precisely the same "common law concept and meaning of gross negligence." Thomas, 464 Md. at 154 (citing Duren v. State, 203 Md. 584, 588 (1954)). Therefore, the statutory cases are still relevant for determining gross criminal negligence at common law. Thomas, 464 Md. at 154.
In Duren v. State, 203 Md. 584, 588-89 (1954), the evidence was sufficient for gross negligence automobile manslaughter where the defendant, while driving in a heavily congested residential and business area of Baltimore City, drove his car at 7:00 p.m. on a Sunday in December at a speed of at least 60 mph (30 mph over the speed limit), ultimately striking a pedestrian who had entered the street, hurling him on to the trunk of a nearby car and killing him. It was significant to the Court that the defendant's car hit the victim with such force that even after the defendant had attempted to brake, he left skid marks for 72-89 feet. Id. It was "plain that the environment in which speed is indulged must determine whether it does or does not show gross negligence at a given time. Id. at 591. This case is said to be "a useful low-water mark for successful manslaughter by vehicle prosecutions." Thomas, 464 Md. at 154.
By contrast, in Johnson v. State, 213 Md. 527, 530 (1957), the evidence was insufficient for gross negligence automobile manslaughter where a passenger was ejected from the defendant's car and killed while the defendant was driving in a non-residential portion of Baltimore City at 1:50 a.m., the defendant hit a curb, side-swiped a pole, and ended up in a plot of grass. It was hotly contested whether defendant was driving 60 mph versus 35 mph. The defendant had consumed two beers and officers smelled alcohol on his breath, but the officers did not believe that he was intoxicated. Contrasting with Duren, the Court looked to environmental factors like the type of road traveled, the time of day, the traffic, the density and character of the neighborhood, and any safety precautions or warnings disregarded. Based on these factors, the Court determined there was insufficient evidence to conclude that the defendant was grossly negligent.
In State v. Kramer, 318 Md. 576 (1990), the evidence was sufficient to support a conviction for manslaughter by automobile when a driver in a rural area, passing in a no-pass zone going at least 75 mph, hit an oncoming vehicle - all the while talking and joking with his passengers. The Court cited lack of speed and lack of attention as demonstration of lack of control in a place and at a time when there was constant potentiality of injury. (The conviction in this case was reversed but only because there was a prejudicial joinder of the charge with an insurance violation charge.).
The aforementioned cases turn on whether, as judged by a holistic view of the risk factors at play, the defendant's conduct was 'likely at any moment to bring harm to another." Thomas, 464 Md. at 156.
Speed and drag racing have been significant factors in making inferences of wanton and reckless disregard for human life while driving.
In Goldring v. State, 103 Md. App. 728, 730-31 (1995), the Court found that a mutual agreement to engage in grossly negligent conduct can be sufficient to find causation, even when the victim was, himself, engaged in the grossly negligent act. Goldring and Hall participated in a drag race on a two-lane country highway with a posted speed limit of 45 mph. During the race, Hall accidentally struck the side of Goldring's vehicle and lost control of his car. Hall and two pedestrians were killed. Id. at 731. Goldring's conduct in competing in the drag race bore a sufficiently direct causal connection to Hall's death to support Goldring's conviction for involuntary manslaughter, and Goldring was convicted in the death of Hall and the two pedestrians. The Court found that "there was ample evidence to support a rational finding that appellant's decision to compete in a drag race on Sunny Side Road constituted grossly negligent conduct." Id. at 734.
For other drag racing cases, see Hensen v. State, 133 Md. App. 156, 171-72 (2000) (participation in an informal street race is sufficient to establish causation, even if defendant's car never contacted the victim's car); Pineta v. State, 98 Md. App. 614, 626 (1993) ("[W]here a third person has been killed as a direct consequence of the illegal racing of motor vehicles, any driver participating in the race may be convicted of manslaughter by automobile...").
In the following cases, convictions were reversed where there was no evidence of speed: Thomas v. State, 206 Md. 49, 56-58 (1954) (where the driver consumed alcohol and drove a truck with brakes in need of repair, there was no gross negligence without evidence of speeding); Plummer v. State, 118 Md. App. 244, 267 (1997) (noting the absence of alcohol or speed in overturning a manslaughter by vehicle conviction).
"Nodding Off" has been the basis for a gross negligence automobile manslaughter conviction. In Skidmore v. State, 166 Md. App. 82, 89 (2005), "[b]ecause Skidmore continued to drive after he was aware that he had nodded off 'a few times,' a rational trier of fact could conclude that he continued to drive in reckless disregard of the risk to human life, and that his conduct constituted gross negligence."
(2) Police Officers
For cases involving police officer conduct resulting in death, these cases are evaluated under a heightened "reasonable police officer under the circumstances" standard, rather than a reasonably prudent person standard. Albrecht, 336 Md. at 487. However, they still provide guidance concerning the line between ordinary and gross negligence. Thomas, 464 Md. at 156.
In State v. Albrecht, 336 Md. 475, 479 (1994), two officers responded to a report of the stabbing of a man. One of the men involved in the stabbing was "Budd" who fled the scene in a car driven by Garnett. The officers pursued the car and discovered it parked at a townhouse complex, with Budd and Garnett standing outside the vehicle. Id. at 480. Officer Albrecht yelled to the suspects, removed a shotgun fitted with a bandolier from his police cruiser, "racked" the gun, and "leveled" it at Garnett. Id. at 481. Officer Albrecht put his finger on the trigger and testified that he "intended to swing the shotgun to the left" to aim it at another party, but the gun discharged, striking Garnett, who fell to the ground dead. Id. at 481-82. Officer Albrecht testified that he did not believe that Garnett posed a danger to him or others, and another officer at the scene stated that Garnett had done nothing to warrant the shotgun being leveled at her. An expert testified that officers are trained to keep their finger on the trigger guard, never the trigger. Id. at 482. Officer Albrecht's conviction for grossly negligent involuntary manslaughter was upheld.
In State v. Pagotto, 361 Md. 528 (2000), Sergeant Pagotto likewise was involved in a shooting resulting in the death of an individual, but the Court affirmed the intermediate appellate court's reversal of the officer's conviction by identifying five factors distinguishing Pagotto from Albrecht: (1) Albrecht drew a shotgun, racked it, and fitted it with a bandolier making it unbalanced, whereas, Pagotto drew a standard issue police handgun with no alterations; (2) Albrecht purposefully brought his gun to bear on the victim, whereas, there was no evidence that Pagotto was aiming his gun at the victim when it discharged; (3) Albrecht placed his finger on the trigger of the gun, which is nearly universally prohibited, whereas, Pagotto, had his finger on the almost universally accepted position of the slide of the gun; (4) Albrecht had ascertained that the victim was not armed and did not present a threat, whereas, the victim in Pagotto's case still presented a substantial threat to Pagotto because the victim was inside a car with his hands hidden from view, and was in the midst of an escape attempt when Pagotto's gun discharged; and (5) several adults and children were behind Garnett when Albrecht shot her, whereas, the confrontation in Pagotto took place at night on an empty city street. Id. at 554-55.
The Court of Appeals in Thomas, recently stated that Albrecht's conduct, like in Duren and Johnson, supra, created a situation "likely at any moment to bring harm to another," whereas Pagotto's conduct, as judged by a reasonable officer standard, was not as unwarranted, unsafe, or likely to cause injury or death. 464 Md. at 158. These environmental risk factors "elevated Albrecht's behavior from ordinary civil negligence to gross criminal negligence." Pagotto, 361 Md. at 554.
(3) Weapons
In Mills v. State, 13 Md. App. 196 (1971), a 16-year-old boy took his father's gun with him to a school dance. The boy, who was unfamiliar with the operation of the gun, went to the bathroom with his friends to look at the gun and drink liquor. Id. at 197. Knowing there was one bullet in the chamber, the boy pointed the gun at his friend, who slapped the gun from the boy's hand. Id. at 199. The gun hit the floor, discharged, and struck and killed another boy. The grossly negligent involuntary manslaughter conviction was upheld. The Court of Special Appeals reasoned that the circumstances "plainly" demonstrated "a grossly negligent act dangerous to life..." and that the friend's "reaction when the gun was pointed in his direction was wholly predictable," and therefore not an independent supervening cause. Id. at 202. The Court of Appeals in Thomas recently commented on this case noting that the bringing of a gun to a dance might by itself be negligent, but the additional facts that the defendant had little experience with weapons, was drinking, and pointed the gun jokingly at another surmount the gross negligence bar. 464 Md. at 159.
(4) Distribution of Heroin
In Thomas v. State, 464 Md. 133 (2019), the Court of Appeals created a new category of grossly negligent involuntary manslaughter. The issue in Thomas was whether distribution of heroin could be the basis of a gross negligence involuntary manslaughter conviction. Id. at 161. The Court found that although distribution of heroin is a malum in se offense (a crime or act that is inherently immoral), it may still serve as an act under grossly negligent manslaughter, as opposed to only being pursued by the State under the theory of unlawful act manslaughter. Id. at 161-62.
The Court of Appeals reviewed cases from other jurisdictions to investigate the line between ordinary negligence and criminal gross negligence in the context of the distribution of intoxicating substances. Id. at 164. The Court found that these cases display an approach to gross negligence manslaughter similar to the one used in Maryland, evaluating the dangers inherent in the defendant's underlying conduct in the context of attendant circumstances. Thomas, 464 Md. at 165.
The Court noted that Maryland appellate courts have upheld convictions for drag racing, speeding in a highly congested area, speeding and passing in a no-passing zone, driving after repeatedly "nodding off," and mishandling guns without intent to kill. Id. at 166. In none of those cases was the defendant's conduct "probably fatal," rather, the conduct posed a "high risk to human life," or was "likely at any moment to bring harm to another." Id. at 166-67 (citing Johnson, 213 Md. at 533).
The Thomas opinion does not create a per se rule providing that all heroin distribution resulting in death constitutes gross negligence involuntary manslaughter. Instead courts must consider the inherent dangerousness of distributing heroin with the attendant environmental risk factors presented by each case. 464 Md. at 167. However, the Court did say that an ordinarily prudent person under similar circumstances should be conscious of this risk. Id.
The facts in Thomas evidence that Thomas was knowingly engaged in the unregulated selling of a CDS with no known medical benefit to customers in a region suffering from an epidemic of heroin and opioid abuse and deaths. There was expert testimony that "heroin kills, and everyone knows it." The Court found that Thomas subjectively knew an overdose was possible based on his statement that the victim "couldn't have overdosed off [the amount] I sold him." When some quantity of heroin will kill, but variable circumstances render that quantity unpredictable, a person takes a large risk in distributing any amount above an exceedingly de minimis threshold. Id. at 168-69.
Thomas's case was not a "mere act of distributing heroin." Rather, a reasonable person in Thomas's place would have understood that the victim was desperate for heroin and would have realized that that increased the risk of the transaction. The victim had been abusing heroin for four-and-a-half years, Thomas knew he was a "young boy" who had been in prison in the past, the night of the fatal overdose the victim called Thomas 27 or 28 times within a 24 minute span and also sent multiple text messages to Thomas imploring him to "call me, please" for heroin. Thomas recognized it was "unusual" for him to meet the victim at midnight. The Court found that all of these facts support the inference that the victim was desperately in need of heroin and might well ingest the entire four bags of heroin immediately. Id. at 169-70.
The Court also found it relevant to distinguish the systematic and sustained heroin distributor from the infrequent or inexperienced provider. Id. at 170. Thomas was a major distributor, replenishing his heroin stock every two to three days, traveling to Delaware to purchase 50-65 bags for $300. At the time of his arrest, Thomas possessed 60 bags of heroin. The victim was not Thomas's only client; thus, it can be inferred that Thomas was aware of the risk to life posed by consistent heron abuse, cognizant of its ill-effects, and yet, continued to sell the drug notwithstanding its danger. Id. at 170.
(5) Negligent Omission to Perform a Legal Duty
Like gross negligence manslaughter, for negligent omission to perform a legal duty, "the negligence [must] be criminally culpable" - i.e., grossly negligent - Thomas, 464 Md. at 152 (citing Mills v. State, 13 Md. App. 196, 200 (1971)).
In State v. DiGennaro, the Court indicated that,
To convict a defendant of involuntary manslaughter by grossly negligent failure to perform a legal duty, the State must prove beyond a reasonable doubt that (1) the victim's death was caused by the defendant's failure to perform a duty that the defendant had a legal obligation to perform, and (2) the defendant acted in a grossly negligent manner because the defendant (a) was aware of his or her obligation to perform that duty, and (b) was aware that his or her failure to perform that duty would create a high degree of risk to human life.
415 Md. 551, 566 (2010) (citing Dishman, 352 Md. at 291; Albrecht, 336 Md. at 499; Judge Charles E. Moylan, Jr., Criminal Homicide Law, § 12.9 (2002); David E. Aaronson, Maryland Criminal Jury Instructions and Commentary, § 5.54(B) (3rd ed. 2009).
In DiGenarro, the defendant was not charged with grossly negligent failure to perform a legal duty, but the Court, by its analysis, intimated that a conviction could have been sustained, had he been properly charged. In this case a truck driver accidentally released a large amount of gravel onto the road and failed to clean it up, causing another driver to spin out of control and die. Although the truck driver could not have been convicted of manslaughter by vehicle, he could have been convicted of common law involuntary manslaughter upon proof beyond a reasonable doubt that (1) even though his operation of the vehicle was neither reckless nor negligent, as a result of what occurred while he had been operating that vehicle, Transportation Article § 24-106(e) imposed upon him a duty to take appropriate remedial measures on behalf of other users of the highway; (2) he failed to perform that duty with reckless indifference to the issue of whether his action was endangering other users of Route 136; and (3) under the circumstances, that failure constituted gross negligence. 415 Md. 551, 564-65 (2010)
In Palmer v. State, 223 Md. 341, 353 (1960), a mother was held liable for gross negligence involuntary manslaughter when she failed to prevent her husband's savage beatings of her daughter. The Court found that her unwillingness to aid her child, which was her duty, resulted in the child's death and she too could be convicted. The Court also found that the grossly negligent conduct need only be the but-for cause of the death, and not an independently sufficient cause of it.
In Robey v. State, 54 Md. App. 60, 72 (1983), the Court found that a mother could be held responsible for failing to seek medical care for her battered child. The Court based its ruling on statute and case law holding that a parent of an infant child has an independent duty imposed by statute to preserve the child's health, even when the parent is not responsible for inflicting the injury. Because the mother grossly neglected to perform this duty, the lower court adjudged her guilty of involuntary manslaughter and child abuse, and that was sustained by the appellate court.
In Craig v. State, 220 Md. 590 (1959), the Court of Appeals held that the evidence was insufficient to support the parents' convictions of involuntary manslaughter for failure to supply medical care for their child during an illness that proved fatal because there was insufficient evidence to support a finding that gross negligence on the part of the parents was the proximate cause of the child's death.
In Craig, the Court stated:
[I]t is almost universally recognized that where the defendant owed to a deceased person a specific legal duty, but failed to perform the same, and death resulted to the deceased because of the non-performance of the duty, (at least under circumstances where the failure to perform constituted gross and wanton negligence) the defendant is guilty of involuntary manslaughter. 1 Warren, Homicide, Sec. 122, states the principle rather succinctly, as follows:
'Where the defendant owed the deceased a legal or contractual duty, any omission of the duty resulting in the death of the deceased renders the defendant chargeable with manslaughter. The duty must have been a plain one which he was bound by law or contract to perform personally. A criminal intent is not a necessary element of the offense. The breach of duty need not have been a criminal offense.'
'The defendant is guilty of manslaughter where he neglected to provide his wife with necessaries or with medical attention, or an infant in his charge with medical attention...'
220 Md. at 596 (internal citations omitted).
In Craig, the child developed pneumonia which caused the child's death. Pneumonia can be controlled if treated by antibiotics in the early stages of the disease. In this case, there was no testimony that the seriousness of the child's illness was apparent to the parents until the last two or three days of the child's life, when, according to the medical testimony, the antibiotics would probably have been ineffective to save the child. There is nothing to sustain a finding that during the early period of the child's illness the parents displayed 'a wanton or reckless disregard for' the child's life. If the child's illness was only apparently serious to them in the last two to three days of the child's life, the failure to call for medical aid at that time did not constitute gross negligence because the doctors stated that by then, they would have been ineffective in controlling the disease, thus the failure could not be the proximate cause of the child's death. Id. at 598-99.
(6) Actual and Legal Causation
"The State must also demonstrate a 'casual connection between such gross negligence and death...to support a conviction, although it is not essential that the ultimate harm which resulted was foreseen or intended." Thomas, 464 Md. at 152 (citing Albrecht, 336 Md. at 499); see also Craig v. State, 220 md. 590, 597 (1959) (negligence "must be the proximate cause of death"); Duren, 203 Md. at 593 ("Necessarily, the criminal negligence must have produced the death if the accused is to be guilty of manslaughter."); Blackwell v. State, 34 Md. App. 547, 557 (1977) (there must "be some reasonable connection between the act or omission and the death that ensued").
Causation includes actual but-for causation and legal causation. Thomas, 464 Md. at 152. For a crime of gross negligence involuntary manslaughter, the defendant's gross negligence must be the proximate cause of the victim's death - meaning the (1) actual, but-for cause and (2) legal cause. Id. at 173.
Actual cause is an ordinary, matter-of-fact inquiry - "it is almost always sufficient that the result would not have happened in the absence of the conduct" - or "but for" the defendant's actions." Id. at 174 (internal citations omitted).
Maryland gross negligence manslaughter cases have evaluated the actual cause of a given result on only a few occasions. Id. at 174-75. In Goldring v. State, 103 Md. App. 728-730-31 (1995), the Court found that Goldring's participation in a drag race was an actual cause of death, even though the victim who jointly participated in the drag race was the driver who accidentally struck Goldring and lost control of his car. Id. at 731. The Court found that Goldring's conduct in competing in the drag race bore a sufficiently direct causal connection to Hall's death to support Goldring's conviction for involuntary manslaughter, and Goldring was convicted in the death of Hall and the two pedestrians.
The Courts have said that a defendant does not "cease to be responsible for his otherwise criminal conduct because there were other conditions which contributed to the same result." See Palmer v. State, 223 Md. 341, 353 (1960) (mother held liable for gross negligence involuntary manslaughter when she failed to prevent her husband's savage beatings of her daughter - her unwillingness to aid her child, which was her duty, resulted in child's death and she too could be convicted - grossly negligent conduct need only be the but-for cause of the death, and not an independently sufficient cause of it); Burlas v. State, 185 Md. App. 559, 578 (2009) (that the victim's car did not pass inspection or might have sped up did not relieve defendant of responsibility).
Furthermore, a defendant need not be the person who actually caused the death where each participant "aided, abetted, and encouraged the other to engage" in the conduct that resulted in the victim's demise. Alston v. State, 339 Md. 306, 321 (1995); Hensen v. State, 133 Md. App. 156, 171-72 (2000) (participation in an informal street race is sufficient to establish causation, even if defendant's car never contacted the victim's car); Pineta v. State, 98 Md. App. 614, 626 (1993) ("[W]here a third person has been killed as a direct consequence of the illegal racing of motor vehicles, any driver participating in the race may be convicted of manslaughter by automobile...").
Causation was considered in Thomas. There, the victim died on the toilet, passed out, with his jaw propped against the vanity sink top. 464 Md. at 176. He he was holding one white Banshee heroin bag and three more bags had fallen to the floor beneath him, all empty. Thomas admitted to selling four bags of Banshee heroin to the victim on the night he fatally overdosed. The Medical Examiner stated that the victim died of "alcohol and narcotic (free morphine) intoxication" and no other drugs were found in his system. The victim's BAC was .08% and the court presumed that a lethal dose of alcohol would be much higher. Therefore, but for the heroin, the victim would not have died. 464 Md. at 176-78.
The Thomas Court then considered legal causation which "turns largely upon the foreseeability of the consequence" of the defendant's acts or omissions and whether "the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant." Thomas, 464 Md. at 152 (citing Palmer v. State, 223 Md. 341, 352-53 (1960)).
The Thomas Court analyzed the legal cause of the victim's death. This is a principle "applicable in both criminal and tort law, and the analysis is parallel in many instances." 464 Md. at 178 (citing Paroline, 572 U.S. at 444). "[I]t is not essential that the ultimate harm which resulted was [actually] foreseen or intended," Albrecht, 336 Md. at 499, rather, "[i]t is sufficient that the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant." Jackson, 286 Md. at 441.
"[I]ntervening conduct that is reasonably foreseeable will not relieve the defendant of criminal responsibility." Thomas, 464 Md. at 179 (internal citation omitted). This is supported by the ruling in Minor v. State, 326 Md. 436, 443-44 (1992), wherein the Court of Appeals upheld a reckless endangerment conviction for an individual who handed a loaded gun to the victim, who then shot himself in a game of "Russian roulette." The fact that the victim pulled the trigger was not sufficient to cut off the defendant's liability. See also Mills, 13 Md. App. at 202 (knocking gun from defendant's hand was not a supervening cause sufficient to relieve the defendant of criminal liability.).
In Thomas it was determined that death is a foreseeable consequence of ingestion of heroin, therefore, it was "eminently foreseeable that [the victim] would use the heroin that Thomas sold him and potentially die as a result." Thomas, 464 Md. at 179. There must be sufficient evidence that the victim would not have died but for the heroin and that his death was a foreseeable consequence of Thomas selling him the four bags of heroin. The state established that. Thomas's conduct was both the actual and legal cause of the victim's death. Id. at 180.
.
INVOLUNTARY MANSLAUGHTER CONTINUED
Johnson v. State
No. 109, Sept. Term ,2018, 2020 WL 502544, (Md. Ct. Spec. App. Jan. 31, 2020), reconsideration denied (Apr. 14, 2020)
In this case, the Court of Special Appeals held that the evidence was not sufficient to support a finding of gross negligence, and thus the conviction for involuntary manslaughter was reversed.
The victim, Roe, was a 23-year-old recovering drug addict who was trying to get on the right path, but who continued to use drugs unbeknownst to his family. The defendant, Johnson, was his 24-year-old friend who used drugs with Roe.
On November 3, 2016, Johnson began texting Roe asking whether Roe was going to obtain any drugs that day, and if so, whether Roe wanted "to go half on a half," meaning to split a half a gram of cocaine or heroin, as was testified by the State's expert witness on drug-related coded words. Roe responded that he might be able to, but, he had to make money first because he owed somebody else $40.00. Johnson texted that he was about to pick up a half a gram for $50.00. Roe asked Johnson, "Can u sell me some," and Johnson replied, "Yeah later."
In the meantime, Roe began texting another individual in his phone named "Josh D" about meeting to acquire drugs.
Roe worked that day and received $50.00. Roe texted Johnson saying "Make a 40 if I get it" and Johnson told Roe that the drugs were "some [fire emoji]."[5] The State's expert testified that the use of the fire emoji when describing drugs means that the drugs are "really good."
Johnson came to Roe's house around 9:30 p.m., Roe exited the house and returned fifteen minutes later. Roe told his mother that he was with Johnson. Roe's mother discovered Roe's lifeless body around 12:30 a.m. Roe only had two five-dollar bills in his wallet. The medical examiner determined that Roe's cause of death was "Acrylfentanyl and Heroin Intoxication."
Johnson was charged, inter alia, with and convicted of involuntary manslaughter at a court trial. On appeal, Johnson raised the question of did the trial court err when it found Johnson guilty of involuntary manslaughter?
The Johnson Court cited the recent Court of Appeals case, State v. Thomas, 464 Md. 133 (2019), where the Court held that to support a conviction for a gross negligence involuntary manslaughter from the sale of heroin, (1) the defendant must have known, or should have known under the reasonably prudent person standard, that the underlying act of selling heroin carried a severe risk of harm, and (2) the sale of heroin must be the actual and legal cause of the victim's death. Id. at 171, 173. The Johnson Court said that the first half of the analysis has its own two components: (1)(a) the activity must be inherently dangerous and (1)(b) environmental risk factors must elevate that risk to rise to gross negligence. The Johnson Court further found, based on Thomas, that the environmental risk factors fall into two main groups including (1)(b)(i) the vulnerability of the buyer or "desperation" and (1)(b)(ii) the dealer's experience and knowledge.
The Johnson Court noted that on the one hand, the Thomas Court emphasized that "a per se rule providing that all heroin distribution resulting in death constitutes gross negligence involuntary manslaughter is unwise and not in keeping with our precedent." Id. The Johnson Court said that on the other hand, the Thomas Court, quoting a Massachusetts decision, found that "the consumption of heroin in unknown strength is dangerous to human life, and the administering of such a drug is inherently dangerous..." Id. (quoting Commonwealth v. Catalina, 407 Mass. 779, 791 (1990)). The Johnson Court was left with the task of determining how the law distinguishes a run-of-the-mill heroin transaction from one that carries a severe risk of harm. The Johnson Court relied on environmental risk factors identified in Thomas that move a defendant's conduct along a continuum of culpability" between non-criminal negligent conduct and criminal gross negligence, id. at 139, and then takes a "holistic view of the risk factors at play" to determine whether the accused's conduct rose to the level of a "high risk to human life." Id. at 157, 166-67.
The Johnson Court applied these factors to the facts of this case. With respect to the inherently dangerous activity of distribution of heroin, the Johnson Court noted that the State did not offer any evidence on the inherent dangerousness of heroin at trial. However, the Thomas Court held that the sale of heroin is an inherently dangerous activity, even if it is not gross negligence per se.
With respect to the primary risk factors, as to desperation/vulnerability, Roe and Johnson were very close in age, were friends, texted one another 26 times over a 9 ½ hour period prior to Roe's death, Johnson was engaging Roe in conversation during that period, and the attempt at communication was not one-sided. As to dealer's knowledge/experience, Johnson was not a "systematic and sustained heroin distributor," nothing in the record suggested Johnson sold drugs at any other time, and Johnson used heroin less than Roe. Johnson was not in a position of power over Roe, the record reveals no reason for Johnson to believe that Roe was at a heightened risk of harm, beyond the risk inherent in the act of buying and using heroin. There were no signs Roe was desperate. This was a case of two friends splitting drugs after talking throughout the day about how they were going to acquire them. The record does not reveal knowledge or experience as a drug dealer on the part of Johnson. Johnson was an addict but he had no greater awareness of or the opportunity to know the drugs' content than Roe did. Johnson's use of the fire emoji did not demonstrate an awareness of a heightened level of risk in this case because the State's expert merely testified that the fire emoji meant the drugs are "really good," not that they are "really strong," and the trial court found that the "term fire" was "ambiguous."
The Johnson Court rebuffed the State, saying, "if this drug sale qualifies as grossly negligent, we struggle to imagine a transaction that wouldn't." The Johnson Court reversed Johnson's conviction for gross negligence involuntary manslaughter because, as a matter of law, no rational fact-finder could have found from the evidence presented to the trial court that he acted with gross negligence.
McCauley v. State,
No. 340, Sept.Term, 2018, 2020 WL 2069928,(Md. Ct. Spec. App. Apr. 29, 2020)
The COSA, in its McCauley opinion, pointed out that McCauley's knowledge and experience as a dealer increased the risk of the sale substantially. And her knowledge of the high level of danger was sufficient for a jury to elevate to a finding of gross negligence.
Dealer's Knowledge/Experience
• Ms. McCauley sold Mr. Wrightson what she said was a mixture of heroin and fentanyl;
• On June 23, 2017, she knew that Mr. Wrightson and Ms. Miller were traveling together to pick up what Mr. Wrightson called "[s]ome of the heroin/Fentanyl" from Ms. McCauley's home;
• In 2017, Ms. McCauley and Mr. Wrightson had overdosed from fentanyl together;
• She was a routine dealer, selling to at least five individuals: Ms. Miller, Mr. Wrightson, Ms. Boswell, Sgt. Heath, and Mr. Tangradi;
• She knew that Mr. Wrightson had overdosed four times from fentanyl she sold him and, when told, she said, "that's horrible," "be careful," "don't do too much," and "it's strong";
• On June 18, she sold Ms. Boswell carfentanil, but told her it was fentanyl, and warned her to "be careful" and "don't do too much";
*5 • On June 21, 2017, when she sold Sgt. Heath fentanyl, she "immediately" cautioned him "to be careful" and to start with "just a fucking flake" of the fentanyl because it was "that strong." She also told him, "please don't die."
• On June 30, 2017, Ms. McCauley sold Sgt. Heath what she acknowledged to be fentanyl.
The COSA further described McCauley as an experienced dealer and noted:
"The record in this case demonstrated that Ms. McCauley knew that the drugs she sold had caused multiple people, including herself, to overdose. She knew the actual and highly dangerous contents of the drugs she sold. In the past, she knowingly sold heroin containing fentanyl, a dangerous analog of heroin, and knew or should have known that she sold drugs containing carfentanil, a tranquilizer significantly more potent than Fentanyl used to sedate rhinos and other large animals. She knew the drugs she sold were so dangerous that she warned many of her buyers of their potency. Ms. McCauley's knowledge of the extreme dangerousness of the drugs she sold raised the risk level from her transaction with Ms. Miller to one in which a jury could find a reckless, wanton disregard for human life."
To support a conviction for gross negligence involuntary manslaughter
from the sale of heroin:
(1) The defendant must have known, or should have known under the reasonably prudent person standard, that the underlying act of selling heroin carried a severe risk of harm
Severe risk of harm means:
· (1)(a) the activity must be inherently dangerous (viewed on a continuum of culpability between non-criminal negligent conduct to criminal gross negligence) and
· (1)(b) environmental risk factors must elevate that risk to rise to gross negligence (by taking a holistic view of the risk factors at play)
Environmental risk factors include, but are not limited to:
o (1)(b)(i) the vulnerability of the buyer or "desperation" and
o (1)(b)(ii) the dealer's experience and knowledge
AND
(2) the sale of heroin must be the actual and legal cause of the victim's death
Cheat Sheet
Comparison of Facts between Thomas and Johnson
Thomas Sufficient Evidence | Johnson Insufficient Evidence |
Desperation/Vulnerability · Thomas knew the decedent was a young boy who had been in prison in the past, and he believed him to be 19 years old · Thomas was 58 years old · The decedent called Thomas 27 times in less than a half hour period to purchase drugs · Thomas only answered one of those calls · Thomas and the decedent met at an unusual time, past midnight, when the pair usually met earlier | Desperation/Vulnerability · Johnson and Roe were close in age - Roe was 23 and Johnson was 24 years old · Johnson and Roe were friends · Roe texted Johnson 26 times over 9 ½ hours · Johnson engaged Roe in conversation, communication was not one-sided |
Dealer's Knowledge/Experience · Thomas was a systematic and sustained heroin distributor who consistently distributed heroin to a substantial network of associates · Thomas was not an infrequent or inexperienced provider · Thomas was a heroin abuser himself · Thomas purchased a high volume of heroin, 50-60 bags, in Delaware every two to three days · Thomas was in possession of 13.10 grams of heroin when he was arrested | Dealer's Knowledge/Experience · Johnson was not a systematic and sustained heroin distributor · Johnson did not sell drugs at any other time · Johnson used heroin less than Roe · Johnson had not greater awareness of or opportunity to know the drugs' content than Roe · Johnson sat at the lowest level of the dealer-user food chain, splitting a small purchase with a friend for their own use |
DEPRAVED HEART MURDER
Next, we analyze the depraved heart murder variety of second degree murder as it is on the continuum after gross negligence involuntary manslaughter: "gross negligence manslaughter is the junior varsity manifestation of depraved-heart murder." Moylan, Criminal Homicide Law § 12.1, at 223.
Depraved heart murder was the last form of murder to be recognized in Maryland, and was first identified by name in Evans v. State, 28 Md. App. 640, 696-697 (1975), aff'd, 278 Md. 197 (1976). Moylan, Criminal Homicide Law § 6.1, at 129 (2002).
Principles
Malice, Recklessness, "Extreme Disregard," and a "Very High Degree of Risk" to Human Life
Murder requires malice, while manslaughter is characterized by the absence of malice. Dishman v. State, 352 Md. 279, 290-91, 721 A.2d 699, 704 (1998) (internal citations omitted). Rather than define the difference between depraved-heart murder and gross-negligence manslaughter, jurors and judges are supposed to "sense" or to "feel" the difference, as opposed to define it. Thomas, 464 Md. at 153.
The actus reus - the killing - is identical. The mens rea - the negligence - differs only as a matter of degree. Thomas, 464 Md. at 159-60. There is no "precise line" between the two offenses. Thomas, 464 Md. at 160 (citing Dishman v. State, 352 Md. 279, 299 (1998). Gross negligence manslaughter "involve[s] quantitatively less culpability in the first instance" than does depraved-heart murder. Thomas, 464 Md. at 160 (citing Moylan, Criminal Homicide Law § 12.1, at 224). It's "simply a little less wanton and a little less depraved..." Id.
The Maryland Pattern Criminal Jury Instructions distinguish the two offenses describing second-degree depraved-heart murder as involving one whose conduct amounts to "extreme disregard" and a "very high degree of risk" to human life. § 4:17.8, at 699 (2018). The pattern instructions describe gross negligence involuntary manslaughter as consisting of "reckless disregard" and a "high degree of risk" to human life. Id. § 4:17.9, at 704.
Depraved heart murder
Establishes that the willful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself. This highly blameworthy state of mind is not one of mere negligence...It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm.
Moylan, Criminal Homicide Law §6.1, at 130 (2002) (citing Debettencourt v. State, 48 Md.App. 522, 530 (1981).
Depraved heart murder is an "unintentional murder[]." Glenn v. State, 68 Md.App. 379, 386 (1986). It does not require any specific intent to kill or injure. It is punishable as murder because another element of blameworthiness fills the place of intent to kill. Robinson v. State, 307 Md. 738, 743 (1986).
Furthermore,
A depraved heart murder is often described as a wanton and wilful killing. The term 'depraved heart' means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must [or reasonably should] realize the risk his behavior has created to the extent that his conduct may be termed wilful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.
R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure § 1.6-3 (1983).
The critical feature of "depraved heart" murder is that the act in question be committed "under circumstances manifesting extreme indifference to the value of human life." 2 Wharton's Criminal Law § 143 at 197 (14th ed. 1979).
Depraved heart murder can exist when there is an intent to injure that results in death.
The terms "recklessness" or "indifference," often used to define the crime, do not preclude an act of intentional injury. They refer to "recklessness" or "indifference" to the ultimate consequence of the act-death-not to the act that produces that result. Robinson, 307 Md. at 745 (citing Model Penal Code § 210.2 comment at 15-22 (1980)). This is usually seen in assault cases that result in death.
In Robinson v. State, 307 Md. 738 (1986), the Court of Appeals held that a conviction of assault with intent to disable did not collaterally estop the State from prosecuting the defendant for depraved heart murder, as the intent to disable was not inconsistent with the intent element of depraved heart murder. In that case, the defendant shot the victim in the thigh, the bullet travelled upwards and lodged in the victim's abdomen and he eventually died. The Robinson Court said that although the "authorities say no more than that the crime may be committed absent intent to injure. They do not hold that the crime is not committed if there is an intent to injure." Id. at 745. The Court further said that "[i]t would be strange, indeed, if unintended death resulting from an intentionally-inflicted injury were deemed less blameworthy than an unintended death resulting from an injury not so inflicted." Id. at 746.
The Robinson Court found that in Moore v. State, 15 Md. App. 396 (1972), the Court of Special Appeals affirmed a conviction for second degree murder on the "depraved heart" basis when a child died after her father, without intent to kill, had spanked and shaken her, which was an infliction of an intentional injury. 307 Md. at 746.
Depraved heart murder can exist when there is no intent to injure but death results.
This is the case where "an act was done, or duty omitted willfully, the natural tendency of which was to cause death or great bodily harm." Lindsay v. State, 8 Md.App. 100, 104 (1969); R. Perkins, Criminal Law at 36 (2d ed. 1969) ("... even if there is no actual intent to kill or injure"). In Lindsay, the use of a deadly weapon (a knife) direct at a vital part of the victim's body (the neck) established malice. Id. at 104.
Malice Towards All versus Malice Towards One
Depraved heart murder does not require a showing of universal malice, meaning an act imminently dangerous to more than just the person who was killed. Robinson, 307 Md. at 747. Though universal malice is a proper basis for depraved heart murder, it is not the only basis for the offense. Id. The Robinson Court held that under the common law of Maryland "depraved heart" murder does not require that more than one life be placed in imminent danger by an assailant's life-threatening act, although the offense clearly is committed if, under appropriate circumstance, several lives are threatened. The requisite disregard for human life may be found in either case. Robinson, 307 Md. at 751.
Depraved Heart Murder Cases
Use of a Weapon and/or Urban Warfare
In Alston v. State, 101 Md. App. 47, 58 (1994), the Court of Special Appeals had
[No] difficulty in concluding that for approximately ten men to engage in an extended firefight on an urban street in a residential neighborhood was conduct that created a very high degree of risk of death or serious bodily injury to others...[a] conclusion in this regard that a very high risk was created is strengthened by the fact that we are talking about 11 P.M. on a hot July evening, when various persons, according to the evidence, were still sitting out on the front steps of rowhouses, quite aside from any question of whether there were persons moving in the street or on the sidewalks.
This opinion was affirmed by the Court of Appeals in Alston v. State, 339 Md. 306 (1995), holding that the evidence was sufficient to support the conviction where the victim, who was a bystander on the street, was killed by a shot that was fired by an individual against whom the defendant was engaged in the gun battle.
In Wallace v. State, 237 Md. App. 415 (2018), a conviction for depraved heart murder was affirmed after six bullets were shot into a house where the defendant believed no fewer than eight persons were occupying the house at the time, and a three year old victim died from a stray bullet.
In Henry v. State, 184 Md. App. 146 (2009), a conviction for depraved heart murder was affirmed where the defendant fired at least nine shots into a crowd from a sawed-off rifle, killing one of the people.
In Cook v. State, 118 Md. App. 404 (1997), a conviction for depraved heart murder was affirmed where after a day of drinking, the defendant tried to run the victim down with his car, followed the victim into the residence, grabbed a loaded gun, pulled the hammer back, began waving the gun around in front of the victim's face, pointed the gun behind the victim, and the gun went off killing the victim.
In Bey v. State, 140 Md. App. 607 (2001), a conviction for depraved heart murder was affirmed where the defendant shot the victim six times and stabbed him twelve times with the Court finding that "[t]he multiple shootings and stabbings were indisputably reckless life-endangering acts."
In Harris v. State, 189 Md. App. 230 (2009), the evidence was sufficient to support a conviction for depraved heart murder where the defendant, while upset, walked to his vehicle outside a bar, grabbed a bottle of liquor from his car, had an exchange of words with the bar's bouncer when he tried to re-enter with the bottle, was denied entry to the bar, and the defendant ultimately fought with the victim and was seen moving a shiny object on his side just after the victim was stabbed, and the defendant then ran to his vehicle.
In Leeks v. State, 110 Md. App. 543 (1996), the evidence was legally sufficient to sustain a conviction for depraved heart murder arising out of an incident in which the defendant was with a group of persons near an apartment complex at which the victim was shot during an argument and ensuing struggle. The evidence indicated that the defendant began waving a small automatic pistol in the air, the gun fired, and multiple bystanders were shot, one fatally.
In Lindsay v. State, 8 Md.App. 100, 104 (1969), the evidence was legally sufficient for depraved heart murder where the defendant used a knife to stab the victim in his neck and chest causing death.
Child and/or Adult Physical Abuse
In Owens v. State, 170 Md. App. 35 (2006), the evidence supported a conviction for depraved heart murder, relating to the death of the defendant's two year old stepchild, where the evidence demonstrated that a tremendous amount of blunt force was inflicted upon the child causing rib fractures, bruising of both the lungs and thymus, and tearing of the liver. There was evidence that such injuries could not have been inflicted by the child's four year old brother, and the defendant had sole custody of the child during the time that the injuries were sustained.
In Kouadio v. State, 235 Md. App. 621 (2018), the evidence was sufficient to support the defendant's convictions for depraved heart murder and child abuse after the defendant's child was found dead from brain trauma, where State presented evidence through doctors that injuries to victim's brain and eyes were recent, severe, and traumatic, and arose from violent and repeated shaking, and evidence showed that the defendant alone had the opportunity to cause the damage during a three hour period when he was alone with the victim after the victim's mother testified that the victim appeared fine when she saw him last.
In Giddens v. State, 148 Md. App. 407 (2002), a conviction for depraved heart murder and child abuse was affirmed where the defendant was the only adult present in the household during the time in which the victim suffered fatal injuries to her head, neck, and spine.
In Ashe v. State, 125 Md.App. 537 (1999), a conviction for depraved heart murder was affirmed where the defendant was a member of a mob of men who beat the victim to death.
Acts of Omission
Homicide by omission may exist. Moylan, Criminal Homicide Law §1.9, at 12 (2002). "Whether a homicide by omission is criminal generally depends on whether the homicidal agent who omitted to take some life-sustaining or life-saving measure owed any duty to do so to the homicide victim, such as the duty owed to a patient by a doctor or nurse; to a child by a parent, guardian, teacher or baby-sitter; to a person placed in a position of danger by the person creating such danger." Id. "If homicidal agency by omission is [ ] established, both the presence of culpability and the level of culpability will then depend on the particular mens rea or other non-culpable mental state that attended the omission to act." Id.
In Simpkins v. State, 88 Md. App. 607, cert. denied, 324 Md. 69 (1991), "a mother and a father were convicted for having omitted, over a period of three-to-five days, to provide food, drink or attention to their two-year-old daughter, who died of starvation." Moylan, Criminal Homicide Law §1.9, at 13 (2002). The Court of Special Appeals affirmed the convictions for depraved heart murder by "point[ing] out how the acts of omission were sufficiently wanton to show a murderous mens rea of the depraved-heart variety:
Where a young child, incapable of self-help, is knowingly, deliberately, and unnecessarily placed in confinement and left alone for up to five days without food, drink, or attention and death ensues from that lack, malice may be inferred. A rational trier of fact could reasonably find that death is at least a likely, if not a certain, consequence of such conduct, that any normal adult would understand and appreciate the likelihood of that consequence, and that the conduct is therefore willful and wanton, manifesting 'viciousness or contemptuous disregard for the value of human life...'"
Moylan, Criminal Homicide Law §1.9, at 13 (2002) (citing Simpkins, 88 Md. App. at 620).
Judge Moylan's treatise on homicide by omission references two involuntary manslaughter cases to show that in contrast to Simpkins, there was no specific intent to kill or a specific intent to commit grievous bodily harm. Moylan, Criminal Homicide Law §1.9, at 13 (2002). In Craig v. State, 220 Md. 590 (1959), a mother and father were both convicted of manslaughter of their six-month-old child for omitting to obtain, because of their religious beliefs, timely medical attention and the child died of pneumonia 18 days after becoming sick. The Court of Appeals reversed this conviction finding that the parents did not possess the gross criminal negligence necessary to support the verdicts of manslaughter. In Palmer v. State, 223 Md. 341 (1960), a mother was found guilty of manslaughter of her 21-month-old child who had been subjected to beatings over a period of time by the mother's boyfriend. The mother's culpable act of omission was in failing to remove the infant from dangerous proximity to the boyfriend. Judge Moylan wrote that:
Although both Craig and Palmer involved verdicts of involuntary manslaughter based on gross criminal negligence, it is obvious that if the act of omission that caused death were motivated by a specific intent to kill or a specific intent to commit grievous bodily harm, the degree of culpability for the homicide by omission would escalate upward proportionately with the escalating mens rea.
Moylan, Criminal Homicide Law §1.9, at 13 (2002).
Judge Moylan's language about the degree of culpability for the homicide by omission being escalated upward with an escalating mens rea was referenced by the Court of Criminal Appeal of England in Regina v. David Hughes, 7 Cox C.C. 301,169 E.R. 996 (1857). The Hughes case was an involuntary manslaughter case in which the defendant superintendent of project on a shaft, omitted to put the stage on the mouth of the shaft, thereby causing a bucket with a truck and bricks to fall down the pit and kill the deceased worker. The jury found that the death of the deceased arose from the negligent omission on the part of the defendant in not putting the stage on the mouth of the shaft. The conviction was affirmed with the Court of Criminal Appeal stating:
[I]f the [defendant], of malice aforethought and with the premeditated design of causing the death of the deceased, had omitted to place the stage on the mouth of the shaft, and the death of the deceased had thereby been caused, the prisoner would have been guilty of murder....[because] it has never been doubted that if death is the direct consequence of the malicious omission of the performance of a duty...this is a case of murder. If the omission was not malicious, and arose from negligence only, it is a case of manslaughter. It has been held that to make the captain of a vessel guilty of manslaughter in causing a person to be drowned by running down a boat, proof of a mere omission on his part to do the whole of his duty is not sufficient;...and, on the contrary, the doctrine seems well established, that what constitutes murder, being by design and of malice prepense, constitutes manslaughter when arising from culpable negligence.
7 Cox C.C. 301.
In In re Eric F., 116 Md. App. 509 (1997), the evidence was sufficient to find the juvenile delinquent of depraved heart murder where he dragged an intoxicated, unconscious, and nearly naked teenage girl into the woods behind his home, in the bitter cold, failed to seek appropriate assistance, and left her to die of hypothermia. Additionally, the juvenile urinated on the unconscious girl, laughed about it, joked about her condition, clothed himself for the cold, rainy weather while leaving the girl nearly naked, and failed to inform his mother, even though he knew that "if we don't go back and get her she['s] probably going to freeze to death." The juvenile also indicated his indifference toward the girl's very dangerous situation by being more concerned about getting caught drinking than about the lack of probability of the girl's survival under such dangerous conditions. This resulted in the juvenile's refusal to call 911 or give the correct address so that an ambulance could find her. Shortly after the juvenile's mother went to sleep, the juvenile also went to sleep, leaving the girl to die, rather than bringing her into his basement. The Court of Special Appeals found that there was sufficient evidence to find that the juvenile knew that his actions would lead to the girl's death, and that he manifested extreme indifference to the value of her life by leaving her in the cold, after failing to seek appropriate help.
Evidence Insufficient for Depraved Heart Murder
In Blackwell v. State, 34 Md. App. 547 (1977), the evidence was determined to be insufficient for a finding of malice, in a drunk driving case which caused the death of another, where there was no inference of "viciousness" or "extreme indifference to the value of human life." The defendant's prior drinking habits were for personal gratification, however selfish and objectionable, and were not evidence of "willfulness." There was no evidence that the drinking was motivated by a purposeful or deliberate intent to bring about the tragic result.
[1] Rookie quarterback for the Buffalo Bills, drafted to the NFL in 2018.
[2] 20 year veteran quarterback for the New England Patriots, taking his team to 9 Super Bowls, winning 6 of them, and considered by everyone (except a Buffalo Bills fan) to be the greatest quarterback of all time.
[3] State v. Thomas, 464 Md. 133, 159 (2019) (citing Judge Charles E. Moylan, Criminal Homicide Law § 12.1, at 223.
[4] State v. Thomas, 464 Md. 133, 173 n. 20 (2019) (citing Judge Charles E. Moylan, Criminal Homicide Law § 11.1, at 207 (2018).
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