MarcusBonsib, LLC Maryland Criminal Defense Lawyer | Greenbelt Federal Crime Attorney 2026-07-08T18:44:53Z https://www.robertbonsib.com/feed/atom/ WordPress by MarcusBonsib, LLC <![CDATA[Maryland Redefines “consent” in Rape and Sex Offense Prosecutions – Or Does It?]]> https://www.robertbonsib.com/?p=47561 2025-01-12T23:58:09Z 2025-01-12T23:57:47Z By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.

During the past session of the Maryland General Assembly, the General Assembly passed House Bill 496 removing the words "by force or threat of force" from the sex offense statutes and changing the definition of "consent".   This new definition became effective on October 1, 2024.

This article will offer some thoughts as to whether this change in the law has materially changed what must be proved by the State in sex crime prosecutions.  While this article offers some observations and attempts to raise some questions about the potential impact of these legislative changes, only experiences in the trials to come will flush out the answers to the questions raised and/or confirm the observations noted in this article.

What Is New?

Prior to October 1, 2024 proof of many sex crimes had as a required element of proof that the criminal act occur "by force or threat of force and without consent."  The new law has removed the words "by force or threat of force" from sex offense statutes.  Those statutes now make it unlawful to engage in vaginal intercourse or a sexual act or sexual contact "without consent." In addition to removing the words "by force or threat of force" from the sex offense statutes, the General Assembly enacted a new statute to define "consent." (Crim. Law 3-301.1 Consent).       The language in the new statute defining consent follows:

Crim. Law 3-301.1      Consent Defined

            (a) In this subtitle, “consent” means the clear and voluntary agreement by an individual to            engage in vaginal intercourse, a sexual act, or sexual contact.

Existence Of Consent

            (b) In this subtitle: (1) the existence of consent, lack of consent, or withdrawal of consent shall be      determined based on a totality               of the circumstances, including the words and conduct of   the victim and the defendant; (2) consent may be withdrawn before or during vaginal intercourse, a sexual act, or           sexual contact; (3) the lack of consent may be communicated through words or conduct; (4) a current or previous dating, social, or sexual relationship by itself does not constitute consent; (5) submission as a result of fear, threat, or coercion does not constitute consent if the       individual alleged to                  have performed the act in violation of this subtitle knows or      reasonably should know that the victim would                    submit as a result of fear, threat, or coercion; and (6) the manner of dress of an individual does not constitute consent.

Documentation Of Consent Not Required

            (c) This section may not be construed to require documentation of consent.

Hazel, Rusk, and Martin

What will be the effect of repealing, as an element of the sexual offense statutes, the required element of "force or threat of force?"  How has the requirement of "force or threat of force" historically been addressed by the appellate courts and how the appellate opinions have discussed the additional requirement that the prosecution also prove "lack of consent." A review of some of the major cases that have for years controlled the legal landscape regarding the elements of "force or threat of force" and "consent" provide some context for our discussion as to whether there is any significance in the new definition of "consent" and the elimination of the requirement of proof of "force or threat of force." In Hazel v. State, 221 Md. 464 (1960) the Supreme Court of Maryland reviewed a prosecution for common law rape, there defined as “the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim.” Id. at 468-69. The evidence disclosed that Hazel followed the prosecutrix into her home while she was unloading groceries from her car. He put his arm around her neck, said he had a gun, and threatened to shoot her baby if she moved. Although the prosecutrix never saw a gun, Hazel kept one hand in his pocket and repeatedly stated that he had a gun. He robbed the prosecutrix, tied her hands, gagged her, and took her into the cellar. The prosecutrix complied with Hazel's commands to lie on the floor and to raise her legs. Hazel proceeded to have intercourse with her while her hands were still tied. The victim testified that she did not struggle because she was afraid for her life. There was evidence that she told the police that Hazel did not use force at any time and was extremely gentle. Hazel claimed that the intercourse was consensual and that he never made any threats. The issue before the Hazel Court was whether “the evidence was insufficient to sustain the conviction of rape because the conduct of the prosecutrix was such as to render her failure to resist consent in law.” Id. at 468.  It was in the context of this evidentiary background that the opinion in Hazel set forth the principles of law which controlled the disposition of that case. The Court recognized that force and lack of consent are distinct elements of the crime of rape: Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily, that fact must depend upon the prevailing circumstances. As in this case force may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim having regard to the circumstances in which she was placed a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force. Id. at 469. As to the element of lack of consent, the Hazel Court said: [I] is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent. Id. The Court noted that lack of consent is generally established through proof of resistance or by proof that the victim failed to resist because of fear: The kind of fear which would render resistance by a woman unnecessary to support a conviction of rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist. Id. at 470. Hazel thus made it clear that lack of consent could be established through proof that the victim submitted as a result of fear of imminent death or serious bodily harm. In addition, if the actions and conduct of the defendant were reasonably calculated to induce this fear in the victim's mind, then the element of force is present. Hazel recognized, therefore, that the same kind of evidence may be used in establishing both force and non-consent, particularly when a threat rather than actual force is involved. In Rusk v. State, 43 Md. App. 476, 484 (1979), rev'd, 289 Md. 230 (1981) the Appellate Court of Maryland ("ACM") found the evidence insufficient to show that the State met the requirement element of showing lack of consent. After reviewing the record, the ACM stated: [We] find the evidence legally insufficient to warrant a conclusion that [Rusk's] words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it. The prosecutrix stated that she was afraid, and submitted because of “the look in his eyes.” After both were undressed and in the bed, and she pleaded to him that she wanted to leave, he started to lightly choke her. At oral argument it was brought out that the “lightly choking” could have been a heavy caress. We do not believe that “lightly choking” along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. In the absence of any other evidence showing force used by [Rusk], we find that the evidence was insufficient to convict appellant of rape. 43 Md. App. at 484. Upon review by the SCM, that decision was reversed and the conviction was upheld: We think the reversal of Rusk's conviction by the [ACM] was in error for the fundamental reason so well expressed in the dissenting opinion by Judge Wilner when he observed that the majority had “trampled upon the first principle of appellate restraint ... (because it had) substituted (its) own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury ... (and had thereby) improperly invaded the province allotted to those tribunals.” 43 Md.App. at 484-85.  In view of the evidence adduced at the trial, the reasonableness of [the victim's] apprehension of fear was plainly a question of fact for the jury to determine. State v. Rusk, 289 Md. 230, 245 (1981). The Rusk Court noted that Hazel did not expressly determine whether the victim's fear must be “reasonable.”  The Rusk Court noted that in Hazel: Its only reference to reasonableness related to whether “the acts and threats of the defendant were reasonably calculated to create in the mind of the victim ... a real apprehension, due to fear, of imminent bodily harm ....” 221 Md. at 469. Manifestly, the Court was there referring to the calculations of the accused, not to the fear of the victim. While Hazel made it clear that the victim's fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious bodily harm would suffice. The vast majority of jurisdictions have required that the victim's fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim.3 We think that, generally, this is the correct standard. Id. at 241–244. With the enactment of Crim. Law 3-301.1 the sufficiency analysis in sex crimes prosecutions no longer has to be concerned with whether there was "force or threat of force" but only whether the evidence established that under the "totality of the circumstances" that there was lack of consent. In Martin v. State, 113 Md. App. 190, 244–45 (1996) the ACM discussed the concept of "constructive force." Constructive force "is present when the perpetrator has acted in a manner to generate enough of a threat of force to make the victim's decision not to resist reasonable even where was no actual force and the victim offered no actual resistance. The Hazel opinion also discussed "constructive force" and stated that "[i]f the acts and threats of the defendant were reasonably calculated to create in the mind of the victim—having regard to the circumstances in which she was placed—a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force."  Hazel v. State, 221 Md. at 469. While the opinions discussing "force or threats of force" and "lack of consent" establish that they are different elements, query as to whether in the real world of prosecuting and defending sex crimes cases these terms are different. Will the elimination of the "force or threats of force" language have any effect in the trial of sex crimes cases? Even with the elimination of the "force or threat of force" language, the State still must prove that the act was done without the consent of the alleged victim.  Of course, one way of proving lack of consent is the victim testifying that she said “no” or “stop.” But in instances where the victim did not say “no” or “stop” but still “acquiesced” – the jury will be instructed, based on the new statute, to consider “the words and conduct of the victim and the defendant” and they will be told that “submission as a result of fear, threat, or coercion does not constitute consent if the individual alleged to have performed the act in violation of this subtitle knows or reasonably should know that the victim would submit as a result of fear, threat, or coercion.” C.L. 3-301.1(b). Using the appellate court's description of "force" as including "constructive force" and using the "totality of the circumstances" standard in Crim. Law 3-301.1, it would seem that proof of the "circumstances" would be similar to the circumstances that the State has always sought to prove in sex crimes prosecutions.  Where there is no actual force, the "threat of force" would still be proven, for example, by the words and actions of the accused, the environment in which the act occurs and whether the alleged victim's professed lack of consent was based upon a reasonable perception of the circumstances under which the sexual act occurs? While it may be that the proof and defense in most sex crime cases will be unchanged, will it make a difference where the sex act occurs where the alleged victim is passive, takes no steps to profess an unwillingness to engage in the sex act and simply "lets it happen"?  Will the new laws make a difference in that situation?  Even in those circumstances, where the evidence shows that the alleged victim was passive and non-expressive as to a lack of consent, will the State will be held to the burden of proving not only that the alleged victim did not consent but that the "totality of the circumstances" were such as to put the accused on notice that there was, in fact, no consent?  Only time will tell. There are specific provisions in the sex offense statutes to deal with a victim who is physically or mentally incapacitated or helpless at the time of the act.  What we are dealing with in the context of the change in the law are those instances where the alleged victim is not incapacitated. Although the new law removed the language of "force or threat of force" from the sex crime status, in defining what constitutes "submission" as contrasted with "consent" the definition of "submission" states that "submission as a result of fear, threat or coercion does not constitute consent."  Does this suggest that "submission" done without "fear, threat or coercion" may be considered consent?  Does this language, in effect, incorporate back into the statutes the "force or threat of force" element in determining "consent" that the recent legislative changes removed from the sex offense crimes statutes? The challenge for defense counsel will be to ensure that the new laws are not broadened beyond the literal language of the statutes and in contravention of legal precedent.

Jury Instructions -Keeping the Guardrails On Crim. Law 3-301.1

 As already noted, at first glance the statutory changes seem to expand the circumstances under which one can be criminally liable for engaging in sexual activity where consent is the issue.  While time will tell whether these statutory changes have a practical impact, much of what is in the new statutes may not change what evidence is presented during trial, what arguments are made, and what factors are considered by the trier of fact "under the totality of the circumstances."  What may be more impactful, however, is how the jury is instructed and how issues regarding sufficiency of the evidence during arguments on motions for judgment of acquittal or on appeal are analyzed.   The manner in which jury instructions are prepared, particularly until Maryland Criminal Pattern Jury Instructions on sex crimes are updated, may be critical. Pending a revision of the current pattern jury instructions for sex crimes, it can be anticipated that there will be vigorous jury instruction conferences as the prosecution and the defense argue for their respective positions as to what modifications need to be made in the current jury instructions for rape and sexual offenses to conform to Crim. Law 3-301.1. The portions of the current instructions with respect to the issues of "force or threat of force" and "consent" clearly will need to be modified.  As an example, the current jury instruction for second-degree rape reads, in pertinent part, with respect to the elements of "force or threat of force" and "consent" as follows: The defendant is charged with the crime of second-degree rape. Rape is engaging in vaginal intercourse or a sexual act by force or threat of force and without consent. In order to convict the defendant the State must prove: that the act was committed by force or threat of force; and that the act was committed without of the consent of [name]. The amount of force necessary depends on the circumstances.  No particular amount of force is required.  Evidence that the [name] physically resisted is not required. Consent means actually agreeing to the [act] rather than merely submitting as a result of force or threat of force. MPJI-Cr 4:29 Going forward, any current jury instructions will need to strike the "force or threat of force" language and incorporate a new definition of consent that is consistent the definition of "consent" as set forth in Crim. Law 3.301.1. Arguing for properly drafted jury instructions can be critical in keeping the issue of consent in proper context.  For example, Crim. Law 3-301.1 discusses the concept of "submission."  In arguing this statutory definition, a properly drafted instruction should include language telling the jury that both includes the statutory language that "submission as a result of fear, threat, or coercion does not constitute consent" (which is already well-established in the case law) but also one that includes the language and requirement that the State must prove that the defendant "knew or reasonably should have known that the alleged victim would submit as a result of fear, threat or coercion."  This provides the foundation for a jury argument that tells the trier of fact to focus on what the defendant reasonably believed, regardless of the feelings of the alleged victim as to whether the alleged victim felt threatened, forced or coerced.  And, again, with respect to this portion of the jury instructions, the instructions should be drafted to make clear that it is the State's burden to prove beyond a reasonable doubt that the defendant knew or reasonably should have known that the victim would submit as a result of "fear, threat or coercion." As previously noted, jury instructions can be important in determining what impact the new laws may have in the trial of sex crimes.   If the State seeks to include in the jury instructions language tracking the statute that tells the jury that the alleged victim's manner of dress or prior and/or current relations with the defendant do not, by itself, constitute consent, then the defense should be demanding that the jury instruction also includes language that informs the jury that  "[h]owever, [these are factors] that you may consider under the "totality of the circumstances" in deciding whether the [alleged victim] consented."  With this balanced instruction, what has really changed about how "dress" or "relationships" may be considered by the trier of fact? When discussing factors such as how the alleged victim was dressed or the nature of the prior or current relationships between the parties should not suggest that the trier of fact necessarily must give lesser weight or consideration to those factors.  Rather the instructions should instruct that the jury should consider those factors just as it may consider other factors as it considers the "totality of circumstances" analysis. The dress may be a relevant factor under the totality of circumstances approach, for example, where the woman changes into lingerie immediately before the relations begin – that factor should not be excluded from the jury’s consideration.

Does Crim. Law 301.1 Change The State's Burden Of Proof?

There are some significant considerations when considering the possible impact on the new laws during the trial of sex crimes.

Even under the new definition of "consent" and even with the elimination of "force or threat of force" the State must still prove, under the "totality of the circumstances" that there was no consent. The definition of "consent," as previously noted, means "the clear and voluntarily agreement by an individual to engage in vaginal intercourse, a sexual act or sexual contact." Crim. Law 3.301.1, on its face, seems to try to minimize the weight or consideration that the trier of fact should give to some of the "circumstances" that are litigated in sex crimes cases.          Did the parties have a prior sexual relationship?  How was the alleged victim dressed?  Does the statute really compel that result?  In fact, even under the new laws, these are still factors that can be relevant "under the totality of the circumstances."  Although the statute defining "consent" directs that a "current or previous dating, social, or sexual relationship by itself does not constitute consent" and that "the manner of dress of an individual does not constitute consent," it does not prevent the trier of fact from considering such factors under "the totality of the circumstances." The inclusion in the statute of the statement that "[t]his section may not be construed to require documentation of consent" is also telling.  In what real-world circumstance would it be expected that, prior to engaging in sex, one or both parties to the act would be required to "pause" and execute a written consent form to continue the sexual activity.  What "give and take" in the legislative process caused this to be included in the definition of "consent?"  Was it a recognition that the push for the enactment of these statutory changes risked a definition of "consent" without due process guardrails? While Crim. Law 3-301.1 will definitely result in significant changes in jury instructions, will it significantly impact on how sex crimes trials are conducted? Since the State still must prove lack of consent beyond a reasonable doubt, the State will still bear the burden of disproving, beyond a reasonable doubt, that the alleged victim did not "clearly and voluntarily" agree to engage in vaginal intercourse, a sexual act or sexual contact.  Jury instructions should be carefully drafted so as not unduly minimize the State's burden of proof regarding lack of consent or suggest that the defendant bears any burden to prove consent. Jury instructions, when defining "consent," should include language that makes it clear that is it the State's burden to prove that there was a lack of consent and that the State must prove that lack of consent beyond a reasonable doubt.

Final Thoughts

In summary, Crim. Law 3.301.1 offers a more detailed definition of "consent."  However, in considering the holdings of appellate cases that have addressed the issue of "force or threat of force" and "lack of consent" - one sees that "lack of consent" has almost always been a "totality of the circumstances" analysis of the conduct of the alleged victim and the defendant.  In those instances where submission occurred, and there was an absence of actual force, and the court found the evidence insufficient, it would have been because the State did not prove that the defendant "knew" or "reasonably should have known" that the submission was because the victim was in fear, was threatened or was coerced. Only the future will answer the questions posited or confirm the observations highlighted in the article as to whether these legislative changes will materially impact on the trial of sex crimes.  ]]> by robertbonsib <![CDATA[Sex Offense Trials: The Path Forward for CJP § 10-923 – Sexually Assaultive Behavior]]> https://www.robertbonsib.com/?p=47469 2024-07-21T22:12:11Z 2024-07-21T22:12:11Z By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.

            This article will do a deep dive into Woodlin v. State, implications of the opinion, and practice pointers for practitioners and judges. This summer, the Maryland Supreme Court decided Woodlin v. State, 484 Md. 253, (2023) (opinion by Eaves, J.), the first opinion interpreting Maryland’s Repeat Sexual Predator Prevention Act of 2018, Courts and Judicial Proceedings Article (“CJP”) § 10-923. Section 10-923, titled “Evidence of other sexually assaultive behavior,” blows the door right off of what was previously a sliver of an opening for the common law exception to using propensity evidence in sexual assault cases. Historically, Maryland common law prohibits using character evidence to show a person’s propensity to act in conformity with their prior bad acts. But, at sexual assault trials, a narrow common law exception permitted evidence of the defendant’s other sexually assaultive conduct that is both similar to the currently charged act and toward the same victim. In 2018, that all changed. For certain sexual offenses, Section 10-923 now lets prosecutors introduce evidence of the defendant’s “other sexually assaultive behavior” involving a different victim, before or after the crime currently charged, and even if the other conduct yielded no conviction and involved a different type of victim (e.g., molesting a child versus date rape of an adult). The prior limitation to the identical victim and similar act was cast aside for the overriding statutory purpose of helping the prosecutor establish the credibility of the victim of a sex crime at trial. Prosecutors “needed” this other-act evidence to help jurors believe their testifying victim. In many sex offense cases, the victim is a child and the prosecutor lacks other evidence to corroborate the minor’s account. While the statute lays out the prerequisites to admission of this “evidence of other sexually assaultive behavior,” it does not speak expressly to the factors for deciding each prerequisite. Woodlin now gives circuit courts a non-exhaustive list of considerations. The admissibility of evidence under CJP § 10-923 depends on two necessary events: (1) the State proving at a required hearing four criteria and (2) the circuit court exercising its discretion in favor of admissibility. At the required hearing, the State first must satisfy four criteria: (1) the evidence is offered either to (i) prove a lack of consent or (ii) rebut an express or implied allegation that a minor victim fabricated a sexual offense, (2) the defendant had the opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior, (3) the sexually assaultive behavior was proven by clear and convincing evidence at the required hearing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. CJP § 10-923(e). Even if the State satisfies these four criteria, the evidence is not necessarily admissible because the court then must exercise discretion whether to admit the evidence. The Woodlin opinion addresses the fourth criterion, the probative value of the evidence versus the danger of unfair prejudice, under CJP § 10-923(e)(4). The Woodlin Court subdivided the fourth criterion into three categories and listed more factors to consider for CJP § 10-923(e)(4): (1) Assessment of probative value;
  • Similarity or dissimilarity of the acts to include:
    • Characteristics of the victim such as:
      • Victim’s age
      • Biological sex
      • Gender identity
      • Status (mental state, physical prowess, capabilities, etc.)
    • Nature of defendant’s conduct such as:
      • Method of perpetrating the sexual offenses (use of violence/weapons, drugs to incapacitate, abuse of position of trust, etc.)
      • Sexual offense itself (specific acts committed, location of assault, etc.)
    • The more similar, the more probative
  • Temporal proximity and intervening circumstances:
    • The closer in time between other behavior and crime charged the more probative it becomes to proving crime charged
    • Intervening circumstance of incarceration may explain the lapse between the assaults
  • Frequency of sexually assaultive behavior:
    • The more frequent the defendant’s other sexually assaultive behavior, the more probative it becomes of the crime charged
(2) Assessment of unfair prejudice;
  • Overshadowing of the crime charged
    • Suggestion that only sexually assaultive behavior that is comparable to, or less than, that of the charged conduct should be admitted so as to avoid heinous acts overshadowing crime charged
  • Jury’s knowledge that a defendant was punished previously
    • If jury knows defendant was punished for past conduct, or was convicted, jury less likely to infer that defendant escaped punishment and want to hold him accountable this time for past act
    • State may attempt to use evidence that did not result in a conviction or was not charged
(3) Assessment of the ultimate discretionary issue of admissibility after satisfaction of subsection CJP § 10-923(e)(1)-(4)
  • Need (do not consider this in above analysis)
    • When victim’s testimony in current case is primary or only evidence of underlying charge, and defendant challenges credibility of victim, need for other evidence is high
    • Although need increases in such circumstances, “the risk that a jury will use such evidence for an improper propensity purpose also increases”
    • Court recognized this is difficult factor to balance but said it is one the circuit courts diligently must consider
  • Clarity and manner
    • Clarity with which State can prove other sexually assaultive behavior
      • Conduct resulting in conviction meets clear and convincing evidence standard required under CJP § 10-923(e)(3)
      • State says conviction is more probative
    • Manner in which it seeks to prove other sexually assaultive behavior
      • State says limit to a few instances that can be presented without a mini trial
      • 5-403 allows exclusion of relevant evidence not just based on unfair prejudice, but if evidence would confuse the issues, mislead the jury, amount to undue delay or waste of time, be cumulative evidence
The Woodlin Opinion emphasizes that the General Assembly intended to give circuit courts wide discretion so they cannot be limited in what they can consider in weighing the probative value against potential dangers of unfair prejudice of “evidence of other sexually assaultive behavior.” PRACTICE POINTERS             Prosecutors: You are the party that benefits from this statute, but remember, you have the burden to comply with its terms. First, you shall file a motion of intent to introduce evidence of sexually assaultive behavior at least 90 days before trial or at a later time if authorized by the court for good cause. CJP § 10-923(c)(1). Second, the motion cannot be a boilerplate notice of intent to introduce evidence under this statute at trial. Rather, the statute requires that the motion “shall include a description of the evidence” along with “any other information required to be disclosed under Maryland Rule 4-262 or 4-263.” CJP § 10-923(c)(2), (3).             Defense Attorneys: You need to ask the court to limit the other “sexually assaultive behavior” to the act, time, place, and conviction if it resulted in one – much like what you do in the context of Rule 5-609. Do not allow the State to introduce salacious details underlying the act. Limit the scope of this evidence that the State can use. The Woodlin opinion makes clear that the trial court will not do this sua sponte and the party needs to make the request. Also, it is “incumbent upon the parties to argue any factor they deem relevant or applicable” – or else it will be forfeited on appeal. Make sure you adequately assert each and every ground in opposition that you can think of at the trial level. Remember that the proposed factors are not mandatory or all-inclusive. If there are other reasons why you believe the State has not met its burden for admissibility, do not be shy to articulate it to the trial court.             Court: Judges “shall” hold a hearing outside the presence of the jury to determine the admissibility of sexually assaultive behavior. CJP § 10-923(d). Before the evidence can be admitted, the court must “state on the record” certain findings. CJP § 10-923(e). The court must find and state the purpose for which the evidence of sexually assaultive behavior is being admitted, i.e., proof of lack of consent or rebut allegation that minor fabricated the sexual offense. CJP § 10-923(e)(1). The court must find and state that the defendant had an opportunity to confront and cross-examine the witness testifying to the sexually assaultive behavior. CJP § 10-923(e)(2). The court must find and state that the sexually assaultive behavior was proven by clear and convincing evidence. CJP § 10-923(e)(3). The court must find and state that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. CJP § 10-923(e)(4). The court should also ensure that the “sexually assaultive behavior” consists of an act that meets the definition in CJP § 10-923(a)(1)-(5), and the court should ensure that the defendant is currently on trial in a criminal case for a sexual offense that is (1) a sexual crime under Title 3, Subtitle 3 of the Criminal Law Article (“CL”); (2) Sexual Abuse of a minor under CL 3-602; or (3) Sexual abuse of a vulnerable adult under CL § 3-604. Remember that the list of factors from Woodlin is not all-inclusive and the court can rely on any other relevant factor for or against admissibility. The Woodlin Opinion also suggests that the court exercise its discretion to balance unfair prejudice versus probative value “potentially twice (in determining whether the State can satisfy subsection (e)(4) and in determining whether to admit the evidence after it finds that the State has satisfied (e)(1)-(4)). A footnote in the opinion also suggest that the trial court really exercises discretion at each and every step. AREAS NOT YET DECIDED BY THE APPELLATE COURTS             What happens if the other sexually assaultive behavior resulted in a guilty plea, rather than a trial, and pertains to a different victim than in the trial in which the State seeks to admit the evidence? In Woodlin, defense counsel argued that the State could not satisfy the confrontation requirement under CJP § 10-923(e)(2) requiring the court to find that the defendant had an opportunity to confront and cross-examine the witness testifying to the sexually assaultive behavior. Defense counsel argued that the prior offense resulted in a plea and the State only intended to call an officer at trial who would introduce the plea transcript of the prior offense. The court overruled the objection and allowed the plea transcript to come in at trial along with a true test copy of his prior conviction. However, on appeal, neither the Appellate Court nor the Supreme Court decided whether the trial court complied with this provision of the statute when it introduced a plea transcript over objection when the defendant never had the opportunity to cross-examine the first victim. The language of CJP § 10-923(e)(2) will likely need to be further refined by the General Assembly and/or interpreted by the Maryland courts. It reads: “The defendant had an opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior[.]” The “sexually assaultive behavior” is the other conduct, not the conduct that the defendant is on trial for. Thus, if a police officer is merely called to introduce a record of a plea hearing, it does not seem that would provide the defendant with a meaningful right to cross examine the witness to the sexually assaultive behavior. On the flip side, perhaps there is no right to cross-examination if the defendant previously waived his right to cross-examine a prior victim when the defendant entered a guilty plea. Maybe the statute would be amended in that instance to read that the court does not need to provide an opportunity to confront a witness about the other sexually assaultive behavior where the defendant has waived his right to cross-examination and has pleaded guilty to the offense.             Is the need factor really just bootstrapping for an otherwise weak prosecution? What is the scope and what are the limitations, if any? The Woodlin Opinion recognizes that “As the State lacks other evidence to carry its burden at trial, the probative value of the other sexually assaultive behavior increases, as does the State’s need for such evidence.” The Court then drops footnote 24 which reads: “Nothing we say should be read as permitting the State to use propensity evidence in lieu of its obligation to prove beyond a reasonable doubt a defendant’s guilt based on the evidence related to the offense currently charged.” But ultimately, that is what is going to happen. If the State’s case is merely a credibility contest, with no other evidence corroborating the victim’s account, the minute that defense counsel asks a sole question on cross-examination, the victim’s credibility is put in issue and the floodgates have opened for the State to bring in propensity evidence of the defendant to argue to the current jury that you should believe this victim because this defendant has done it before to someone else. What if the prior conviction or accusation was based upon the prior victim’s word alone and there was no corroborative evidence in the prior offense? This begs the question – what is the “proper” propensity purpose vs. the “improper” propensity purpose. The statute doesn’t say anything about a limiting instruction – and what would the limiting instruction be? To only use the other sexually assaultive behavior to determine if the victim in this case is telling the truth? To not use the evidence as substantive evidence that the current offense actually happened even though you have now heard evidence that the defendant did this on another occasion? Should the jury be told that the proof of the prior occasion was only clear and convincing evidence and might not have been proof beyond a reasonable doubt which is needed for a criminal conviction? If the only evidence in this case is the testimony of the victim, then are we essentially telling the jury to use this as evidence to find that the victim’s word is Gospel? How will this evidence be used by the prosecutor against a testifying defendant? Can the prosecutor use it to challenge the defendant on cross-examination, asking him you did it before but you are saying today that you did not do it to this person? The only certainty is that the use and interpretation of this statute is ripe for review by the appellate courts. Object, argue, adequately state reasons, preserve, appeal!]]> by robertbonsib <![CDATA[“SELECTIVE” OR “CONFIRMATORY” IDENTIFICATION? – REYES V. STATE]]> https://www.robertbonsib.com/?p=47468 2024-07-21T22:03:25Z 2024-07-21T22:03:25Z By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

            In Reyes v. State, 257 Md. App. 596 (2023), Reyes was convicted by jury of attempted first-degree murder.  The victim of the shooting, Daniel Bartley, made both a pre-trial and in-court identification of Reyes as the shooter.   Reyes unsuccessfully moved to suppress both identifications contending that because Bartley was presented with a single-photo "photo array" that such a procedure was impermissibly suggestive. The Appellate Court of Maryland ("ACM") rejected Reyes' argument and explained the different analysis required when the identification procedure is a "confirmatory" and not a "selective" identification. The ACM defined both terms and explained that a "selective" identification occurs when an eyewitness observes an unknown perpetrator commit a crime and then views suspects in an effort to identify the perpetrator to law enforcement.  This often occurs during a line-up or when a victim is asked to view a series of photographs to determine if the perpetrator is amongst those depicted in the line-up or photo array.   In such an identification process, the witness has no independent experience with the suspect. A "confirmatory" identification is one where the witness has prior familiarity with the suspect and is merely asked to confirm that a suspect is the person the witness knew from before the crime.  The police show a photograph in an effort to confirm the identity of the suspect. The ACM noted that its prior decisions have discussed confirmatory identifications made by displaying a single photograph to the witness. In State v. Greene, 240 Md. App. 119, 154-5 (2019), aff'd 469 Md. 156 (2020), Judge Moylan provided, as expected, a detailed and extensive review of the history of Supreme Court and other relevant opinions discussing when constitutional and due process concerns impact the admissibility of pre-trial and in-court identifications. In its further discussion of the differences between the two types of identifications, the ACM notes that in the typical selective identification, the witness does not know the perpetrator from before the crime and any identification is based only upon the witness' memory of the person's characteristics, a memory that poses risks because of the fact that the witness might have obtained only a brief glimpse of the criminal or may have made observations under poor conditions.  In such a circumstance, an impermissibly suggestive police procedure could have the effect of influencing a witness into mistakenly identifying an innocent person by giving the witness a clue about which suspect the witness should identify.  Quoting from Simmons v. United States, 390 U.S. 377, 383-384 (1968) and Manson v. Braithwaite, 432 U.S. 98, 112 (1977), the ACM reminds that when a witness has only a weak memory of the perpetrator, an impermissible suggestion may even influence the witness’ memory itself as the witness could retain in his memory the photograph shown by the police rather than the person actually seen by the witness. Simmons, 390 U.S. 383-384.   It continues from Manson that "usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress" and "the witness' recollection of the stranger can easily be distorted by the circumstances or by later actions by the police." Manson, 432 U.S. at 112. It is not that any impermissible suggestion automatically results in suppression of the identification.  The key test is whether the identification procedure meets the threshold of being constitutionally “reliable.”  That test is satisfied so long as any impermissible suggestion does not “give rise to a very substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384. The ACM instructs and reminds of the two-step constitutional due process procedure that must be considered.  First, did an impermissibly suggestive procedure, arranged by a state actor, procure the identification? Second, because of the impermissible suggestion, determine whether the identification is not constitutionally "reliable" - i.e., whether the identification procedure presents "a very substantial likelihood of misidentification." The burden shifts during this analysis. First, the defendant bears the burden of demonstrating "some unnecessary suggestiveness in the procedure employed by the police."  If the defendant offers evidence to show that the procedure was impermissibly suggestive, then the State must prove by clear and convincing evidence that the independent reliability in the identification outweighs the corrupting effect of the suggestive procedure. Bean v. State, 240 Md. App. 342, 355 (2019). Some of the factors the Supreme Court set forth to aid in assessing reliability are: (i) the opportunity of the witness to view the criminal at the time of the crime; (ii) the witness' degree of attention; (iii) the accuracy of his prior description of the criminal, and (iv) the level of certainty demonstrated at the time of the confrontation The Identification Instruction at MPJI - Cr. 3:30 advises the jury to consider similar factors and instructs, in pertinent part, as follows: You have heard evidence about the identification of the defendant as the person who        committed the crime.  You should consider the witness' opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness' state of mind and any other circumstance          surrounding the event.  You should also consider the witness' certainty or lack of certainty, the accuracy of any prior description, and the witness' credibility or lack of credibility, as well as any other factor surrounding identification. MPJI - Cr. 3:30. It is important to also consider, however, that there has recently been much discussion and debate about how the degree of certainty of an eyewitness should be considered as a witness can honestly state that they are certain of the identification and yet be 100% wrong. The ACM then distinguishes how the "confirmatory" identification does not suffer from the same degree of risks of impermissible suggestion as the "selective" identification.  That is because in a "confirmatory" identification the witness knows the perpetrator from before the crime and thus the witness is not as vulnerable to suggestion as the "selective" identification. In Reyes, the ACM determined that the identification procedure was "confirmatory" in that Bartley, although an eyewitness to the crime, did not perform any selection.  Bartley simply recognized Reyes as someone he knew from having seen him before the crime and had advised the police that he knew him from having seen him before observing committing the crime and even told the police that he know Reyes as "Andy." In Reyes, the ACM cautioned, however, that there is more to assessing whether the "confirmatory" identification implicated due process concerns.  In doing so, the Court must assess whether "as a matter of law, the witness is so familiar with the defendant that there is little to no risk that police suggestion could lead to a misidentification."   There must be sufficient familiarity to pass the due process threshold to be considered constitutionally reliable.  Where the prior familiarity is not sufficient, then it must be analyzed as is required with a "selective" identification. In assessing whether there was sufficient familiarity, the Court instructs that it must look to the "whole circumstances."   It reviews some of those circumstances, such as: (i) the witness' opportunity to view and interact with the suspect on prior occasions before            the crime; (ii) the duration and nature of the prior encounters; (iii) the time elapsed between the crime and the prior viewings; (iv) whether the witness and the suspect had any conversations; (v) the witness' behavior after the crime that might shed light on the witness' prior             familiarity with the suspect such as whether the witness told the police prior to being shown the suspect's photograph that he had recognized the suspect as someone he knew. The ACM continued that there will typically be sufficient familiarity where the suspect is a family member of long-time acquaintance of the witness as contrasted with a prior relationship that is "fleeting or distant."   A "fleeting" or "distant" prior relationship or brief encounter may not be sufficient to characterize the identification as "confirmatory" rather than "selective." Noting that the bar for sufficient familiarity is not high, the ACM then gave examples such as where the witness only knew the suspect for a month and did not know the suspect's name or when an eyewitness tells an officer shortly after the crime that he or she knows the perpetrator and has seen him around. In one instance a court found there was insufficient familiarity where the only evidence was nonspecific testimony from police officers that the witness said that he knew the defendant from the neighborhood, without more.   In other cases cited in Reyes, the appellate court remanded the case for a further evidentiary hearing where the record was unclear as to prior familiarity or where the issue of familiarity was not adequately tested through cross-examination. Before addressing the facts in Reyes, the ACM reviewed the standard of review with respect to the denial of a motion to suppress.  It noted that it relies solely on the developed at the suppression hearing, in the light most favorable to the prevailing party. While the appellate court will give great deference to the hearing judge's determination and weighing of first-level findings of fact, unless determined to be clearly erroneous, issues of law with respect to whether a constitutional right has been violated, receive no deference.   The appellate court will apply a de novo standard of review and will make its own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. The ACM held that the hearing judge properly denied Reyes' motion to suppress.  It concluded that although Bartley was both an eyewitness to and victim of the crime, he did not perform any selection.   He simply recognized Reyes, rather than perceiving a stranger and trying to memorize descriptive details.   And he promptly told such to the police. When Bartley was shown Reyes' photograph it was not to help Bartley select and identify Reyes, nor did it constitute a suggestion by the police about the identity of the perpetrator.  Bartley had already told the police that "Andy" had shot him. Reviewing the issue of "sufficient familiarity" the ACM noted that Bartley had known Reyes for approximately six months before the crime occurred and during that time observed Reyes several times and in a variety of settings, in at a home and at a restaurant.  He could recognize Reyes' voice and knew his first name was Andy.  He also told police about a restaurant that Reyes frequented and where the police might obtain a photograph of Reyes.  The police only became aware of Reyes' identity because of the information provided by Bartley. The ACM emphasized that the inquiry at a suppression hearing is to be limited to (1) whether the confirmatory identification was supported by sufficient familiarity, and if not, then (2) whether the identification should nonetheless be admitted as a selective identification. Other issues are for the jury, including the ultimate weight to be given to the identification itself, as well as the witness’s credibility and reliability with respect to the identification (rather than the witness’s prior familiarity with the suspect). A Review and Refresher In 2017 we wrote an article focusing on the law pertinent to pre-trial identification procedures.  A portion of that article is repeated here as a review and refresher. In Jones v. State, 395 Md. 97, 107–11 (2006) the Supreme Court of Maryland discussed the concerns and policy considerations relevant to pre-trial identification procedures noting that the use of photographic displays by the police to identify suspects is used widely in the United States, and when conducted properly, has been held to be admissible in evidence. See Simmons v. United States, 390 U.S. 377 (1968). The Simmons Court noted that “[d]espite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.” Id. at 384. Nonetheless, the defendant is protected by due process “against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.” Moore v. Illinois, 434 U.S. 220, 227 (1977), quoted in Webster v. State, 299 Md. 581, 599–600 (1984). In Simmons, the Supreme Court recognized that improper use of photographs by police may sometimes cause witnesses to make misidentifications: A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification. 390 U.S. at 383–84. The Simmons Court declined to prohibit categorically the use of photographs, either as a matter of constitutional law or in the exercise of its supervisory power, holding as follows: [E]ach case must be considered on its own facts, and ... convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on       that ground only if the photographic identification procedure was so impermissibly             suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Id. at 384. In Jones v. State, 310 Md. 569 (1987) (overruled on different grounds), the Supreme Court of Maryland addressed issues related to a motion to suppress an extra-judicial identification and the due process protections against admissibility of evidence derived from out-of-court, suggestive identification procedures.  The Jones Court reviewed the two-step inquiry for due process challenges to extra-judicial identifications. The first is whether the identification procedure was impermissibly suggestive. Id. at 577.  If the answer is “no,” the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. Id. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable.  Id.  In the context of a pre-trial photo identification, unless and until the defendant establishes that the identification procedure was in some way suggestive, the reliability of a witness' identification is not relevant for due process purposes. Id. at 578. In Smith and Samuels v. State, 6 Md. App. 59 (1969), Judge Orth discussed the relative burdens on each party to a motion to suppress identification evidence. He pointed out that the initial burden of going forward, and of persuasion, rests upon the defendant. He wrote as follows: At the hearing on the issue raised by the challenge the burden is on the defendant to show, prima facie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal. If the court finds that the State has met its burden and that the pre-trial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial confrontation or viewing is admissible as substantive evidence. And if such witness made a pre-trial identification, his testimony to that effect is so admissible. And, the testimony of a third party present when the pre-trial identification was made is so admissible provided the out-of-court declarant is at the trial and subject to cross-examination; whether or not he makes an in-court identification.  If the court finds that the pre-trial confrontation or viewing was illegal, any and all evidence of the pre-trial identification is per se inadmissible. The burden is then on the State to establish that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing. It must do this ‘by clear and convincing evidence’ that the in-court identification is based ‘upon observations of the suspect’ by the witness other than the confrontation or photographic identifications. Id. at 68. In Smiley v. State, 442 Md. 168, 178–85 (2015), the SCM re-affirmed the procedure discussed in Jones and then further advised that suggestiveness can arise during the presentation of a photo array when the manner itself of presenting the array to the witness or the makeup of the array indicates which photograph the witness should identify. See also Conyers v. State, 115 Md. App. 114, 121 (1997), cert. denied, 346 Md. 371 (1997) (“The sin is to contaminate the test by slipping the answer to the testee.”) (emphasis omitted). In a case in which the Supreme Court concluded that a photo array was not impermissibly suggestive, the SCM explained that a photo array “ ‘to be fair need not be composed of clones.’ ” Bailey v. State, 303 Md. 650, 663 (1985) (quoting Webster v. State, 299 Md. 581, 620 (1984)). In Bailey, the defense alleged that the photo array shown to the victim was impermissibly suggestive because the men in four of the six photographs did not resemble Bailey. The SCM concluded that the array was not impermissibly suggestive, because the mug shots that comprised the array reflected a number of similarities, to include: each man was photographed from the same camera angle; each man had the same photo card around his neck, the text of which had been blacked out; each individual was a young black male; each individual had close-cropped hair; several of the men had slight mustaches, though none was bearded; the men wore different styles of casual shirts; and none of the individuals had any unusual features. In a subsequent case, Evans v. State, 304 Md. 487 (1985), the SCM held that the identification procedure was impermissibly suggestive when only a single photograph was presented to the witness, under circumstances that were not exigent. In State v. Greene, 240 Md. App. 119, 154-5 (2019), aff'd 469 Md. 156 (2020), which is referred to on a number of occasions the Reyes opinion, Judge Moylan used the Wade–Gilbert–Stovall trilogy—United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); and Stovall v. Denno, 388 U.S. 293 (1967) – to provide a roadmap to the historical development of the constitutional and due process principles that now govern issues regarding the admissibility of identification procedures. The Greene opinion concludes by noting that "[a]fter a thorough and extended review of the opposing approaches, the Supreme Court opted for ultimate reliability instead of for exclusion."  The Manson Court instructed that “reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations.” 432 U.S. at 114. The factors to be considered are set out in Biggers, 409 U.S. at 199–200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.  Greene, 240 Md. at 144. For a full understanding of the development of the law in this area reviewing the opinion in Greene is highly recommended.  ]]> by robertbonsib <![CDATA[SEARCHING CELL PHONES – WHEN, HOW AND LIMITS ON USE]]> https://www.robertbonsib.com/?p=47367 2022-01-15T23:16:37Z 2022-01-15T23:16:37Z By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

            In a 2015 article captioned "Authenticating Evidence Found On Social Media and In Cell Phones - It's Complicated" we discussed a number of appellate opinions dealing with the introduction of cell phone evidence.  Because cell phone evidence is used in many of our current cases, we are going to revisit these issues with an update discussing additional cases decided since our previous article. The October, 2015 article is available for review by clicking here.  (2015 Article).              The cases which all counsel should have at the ready when seeking to admit or exclude the cell phone evidence are the following:       Sykes v State, November 18, 2021, ---A.3d----(2021) 2021 WL 5366047       State v. Sample, 468 Md. 560 (2020)       Baker v. State, 223 Md. App. 750 (2015)       Sublet v. State, 442 Md. 632 (2015)       Griffin v. State, 419 Md. 343 (2011)        Garner v. State, 414 Md. 372 (2010)        Carpenter v. State, 196 Md. App. 212 (2010)        Dickens v. State, 175 Md. App. 231 (2007)

            These cases review recurring issues including authentication, proof of device ownership, identity of the author of text messages, relevancy, balancing of probative value versus prejudicial effect, hearsay, and expert testimony.

            Since our 2015 article, the appellate courts have issued opinions in Sykes, Sample and Baker.

Sample v. State

            In Sample, the defendant contended that Facebook Business Records were inadmissible because no witness would testify that the records pertained to Sample. Sample argued that extrinsic evidence is necessary to connect social media evidence with the person to whom the social media profile allegedly belongs. Sample asserted that the State needed to prove that Sample had exclusive access to the SoLo Haze Facebook profile, and that he used it to unfriend the claude.mayo.5 Facebook profile.             The State argued that the Facebook business records would prove that Sample and Mayo had been friends on Facebook, and that, after Mayo died, Sample unfriended him on Facebook. Specifically, the State argued there were sufficient identifying characteristics in the business records including the name “SoLo Haze,” the e-mail address containing “mrsample” in the name, and the profile listing connections to Baltimore area schools, and therefore, a reasonable juror could find that the SoLo Haze profile belonged to Sample.             The Court of Appeals (COA) held that the circuit court did not abuse its discretion in admitting the Facebook-related evidence, as there was sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for a reasonable juror to find that the SoLo Haze Facebook profile belonged to Sample, that the claude.mayo.5 Facebook profile belonged to Mayo, and that Sample used the SoLo Haze profile to unfriend the claude.mayo.5 profile.             Maryland Rule 5-901(a) states that a party can sufficiently authenticate a piece of evidence through “evidence [that is] sufficient to support a finding that the matter in question is what its proponent claims.” Previously in Sublet, the COA adopted the “reasonable juror” test from federal case law for authentication of social media evidence. Although the COA did not mention the term “preponderance of the evidence” in its discussion in Sublet, its adoption of the “reasonable juror” test necessarily means that for a trial court to admit social media evidence, there must be sufficient evidence for a reasonable juror to find that the social media evidence is authentic by a preponderance of the evidence.

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 robertbonsib <![CDATA[“ZOOMING” Through The 6th Amendment]]> https://www.robertbonsib.com/?p=47244 2021-11-14T00:24:36Z 2021-11-14T00:24:36Z Spinks v. State & The Challenges Of Cross-examination Through A Video Screen

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:
  1. The witness appeared via real time video conference accessible via computer over the internet;
  2. The witness could see everyone in the courtroom;
  3. Everyone in the courtroom could see the witness, including the defendant;
  4. The witness was alone while testifying;
  5. The witness was first sworn and that the oath was administered just as if the witness had been in the courtroom;
  6. With respect to the quality of the video, the only defect was a tiny delay of sound, which the court described as a couple of milliseconds - and the screen was clear and not pixelated;
  7. The witness had been duly subpoenaed;
  8. After being subpoenaed, the witness received a call that his mother in the Guinea was in the hospital in a coma and was concerned and flew home the next day;
  9. The witness' visa had expired in 2018 and having left the United States he could not lawfully re-enter the United States;
  10. There is no reasonable expectation that the witness would ever get a valid visa so that even if his mother immediately got better, he could not return and get lawfully through immigration;
  11. The circumstances with respect to the unavailability of the witness were neither a sham nor a ruse;
  12. There was an important public policy to respect - that is that victims of crime are entitled to protection of the criminal laws regardless of whether or not the witness is lawfully in the United States;
  13. That the circumstances in Spinks' case provided an alternative that was as close as it gets to in person confrontation and fits within what Judge Leahy discuss in White and provided much more protection of the right of confrontation that was present in Craig where the defendant was not allowed to see the witness; and
  14. The necessity in this case was not created by the State.
The trial court also addressed the issue of the evolving reliability of remote technology, noting as follows: Simply, technology evolves, and sometimes, albeit slowly, the courts evolve with it. There’s no question that a defendant’s right to confront an accuse[r] is paramount, and it     is also quite clear that the defendant’s right to confront an accusatory witness may be satisfied absent a face to face in the courtroom. Here we have face to face over, I find, a reliable technological medium, and it would not deny his rights under the Sixth Amendment to the federal constitution or the Maryland [constitution]. . . . It was important in this case that the witness's absence was not something that the witness sought or desired but was caused by a true medical emergency. The trial court also noted that in the Spinks trial, Sanoh was going to say something that was not really contested.  The witness was not going to make an in-court identification nor was the State going to seek to introduce through the witness a prior identification.  The trial court suggested that if these factors were different, then the court may have reached a different conclusion. COSA determined that the trial court's factual findings were not clearly erroneous. The remote testimony was necessary and that the features of Skype, as used during the trial, gave the testimony assurances of reliability. COSA held that allowing the witness to testify via Skype did not violate Spinks' Sixth Amendment right to confront his accuser. COSA reviewed how the seminal decision in Craig affirmed the constitutionality of this State’s statute authorizing testimony by a child victim via one-way closed-circuit television. See also Criminal Procedure Article § 11-303.  The Craig Court held that such a procedure does not violate the Sixth Amendment right to confrontation when there is a finding that it is necessary to further the State’s strong interest in protecting the child victim from the emotional trauma of having to testify in the defendant’s presence, and when the procedure used adequately preserves the other elements of confrontation that establish indicia of reliability. However, before admitting such video testimony, a court must hear evidence and make a case-specific finding that it “is necessary to further an important state interest.” Thus, the standard set forth in Craig is whether the witness’s testimony via a two-way medium is reliable and whether the denial of an accused's right to confront in person furthered an important public policy. Maryland courts have acknowledged that “[e]ven the most cutting-edge technology cannot wholly replace the weight of in-court testimony, for the electronic delivery of that testimony—no matter how clearly depicted and crisply heard—is isolated from the solemn atmosphere of the courtroom and compromises human connection to emotions like fear, apprehension, or confusion.” The Craig court "emphatically cautioned” that there must be “necessity—not simply convenience or expediency—in order to deny a defendant his right to physically confront his adversaries in a court of law” and that “a court must render an adequate, case-specific finding based on the evidence presented that the two-way video conference is necessary to further the identified public policy.” However, we must remember that the right to a witness’s physical presence in the courtroom is neither absolute, nor “the sine qua non of the confrontation right" and that in some circumstances, that preference may “give way to considerations of public policy and the necessities of the case.” The Spinks opinion referenced Maryland Rules 2-803, 2-804, and 2-805, adopted by the Court of Appeals in 2018, establishing new standards for video testimony during civil proceedings, in an effort to “expand[] and consolidate[] existing Rules dealing with remote electronic participation in judicial proceedings.” These rules include specific standards for two-way video testimony, which are designed “to take advantage of the technology that allows for reliable interactive communication to provide for more efficient." The Rule provides that:

(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 robertbonsib <![CDATA[FORGOT THAT THE GUN WAS IN YOUR BAG OR IN YOUR CAR? YOU ARE GUILTY – EVEN WHEN YOU MAY BE INNOCENT! SO SAYS THE COURT IN LAWRENCE V. STATE]]> https://www.robertbonsib.com/?p=47133 2021-10-09T22:46:26Z 2021-10-09T22:41:08Z  

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.    ]]> by robertbonsib <![CDATA[DRONE SURVEILLANCE – WHO’S WATCHING YOU]]> https://www.robertbonsib.com/?p=47060 2021-07-19T01:20:31Z 2021-07-17T21:44:23Z DRONE SURVEILLANCE INVADING YOUR PRIVACY

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.

]]> On Behalf of MarcusBonsib, LLC <![CDATA[RAP LYRICS – MARYLAND COA GIVES FINAL TURN TO KEY LOCKING IN 50 YEAR SENTENCE]]> https://www.robertbonsib.com/?p=47053 2021-01-06T19:48:49Z 2021-01-03T06:00:00Z By Robert C. Bonsib, Esq.

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.]]> On Behalf of MarcusBonsib, LLC <![CDATA[A LOOK AT CAR SEARCHES – ON A “THREE-DIMENSIONAL FOURTH AMENDMENT VOYAGE” WITH JUDGE MOYLAN IN STATE V. WHITE]]> https://www.robertbonsib.com/?p=47054 2021-01-06T19:48:54Z 2021-01-02T06:00:00Z By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

Odysseus.jpeg

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.]]> On Behalf of MarcusBonsib, LLC <![CDATA[Border Searches of Cellphones and Electronic Devices – A Discussion by the Fourth Circuit Court of Appeals]]> https://www.robertbonsib.com/?p=46305 2021-01-06T19:48:59Z 2020-10-10T05:00:00Z THE BORDER SEARCH EXCEPTION TO THE WARRANT REQUIREMENT

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.

]]>