Criminal Law & Procedure -Newsletter  
(Maryland State & Federal-Fourth Circuit-Supreme Court Case Summaries)
November 4, 2013

  

Robert C. Bonsib, Esq.

and

Megan E. Coleman, Esq.
RCB MEC 

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Robert C. Bonsib, Esq.

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Bent tag and illegible registration tag sufficient objective reasons for traffic stop - follow up inquiry to arrestee prior to advice of rights was not functional equivalent of interrogation
 

   Johnson challenged the district court's finding that the police had a lawful basis to stop his vehicle after observing what was characterized as a bent license tag and illegible temporary registration tag.  The Fourth Circuit found that such observations, credited by the district court, provided a lawful basis to conduct the traffic stop.   The Court rejected Johnson reliance on United States v. Tibbetts, 396 F.3d 1132 (10th Cir. 2005) which held that "when police completely ignore the purported reason justifying the initial traffic stop, a court may consider that failure when evaluating the objective reasonableness of the stop under Fourth Amendment," and stated that it was incompatible with Fourth Circuit precedent that it is not relevant whether police officers proceed to take further action on the predicate traffic violation.

 

       Once stopped, further investigation lead to Johnson being arrested for possession of marijuana.  After he was arrested, handcuffed and placed in the back of the police car, and prior to being informed of his Miranda rights, Johnson volunteered - "I can help you out, I don't want to go back to jail, I've got information for you."  The detective responded - "what do you mean?" and Johnson responded - "I can get you a gun."  Johnson was then advised of his Miranda rights and subsequently gave information to the detectives that lead to the seizure of a weapon. 

 

       Rejecting Johnson's contention that the detective's reply to Johnson's original statement was the functional equivalent of interrogation of the type discussed in Rhode Island v. Innis, 446 U.S. 291 (1980), the Court held that the detective's response to Johnson's statement was not the type of conduct "that police should know [is] reasonably likely to elicit an incriminating response."  

 

 

Please enjoy this newsletter summarizing current cases and other developments in the area of criminal law and procedure compliments of Robert C. Bonsib, Esq., Megan E. Coleman, Esq. & MarcusBonsib, LLC.
 
[click on hot link at end of each case summary to review entire opinion]
USDC Judge James K. Bredar grants two-level downward variance for 22 defendant's facing sentencing in marijuana conspiracy based on changes in state law and federal enforcement policy regarding marijuana
 
     In United States v. Kerem Dayi, et al., (USDC Md. Case No. JKB 13-0012), a case in which United States District Judge James K. Bredar was preparing to sentence 22 defendants in a large-scale, interstate conspiracy to distribute marijuana, Judge Bredar decided to grant each defendant a downward variance of two levels from the otherwise applicable offense level under the federal sentencing guidelines in recognition of the changes in state law and federal enforcement policy regarding marijuana.    

 

    Judge Bredar's Memorandum provides context for his decision, noting that twenty-one states and the District of Columbia had authorized the cultivation, distribution, possession and use of marijuana for medical purposes and if one adds those states that have decriminalized the possession of small amount of marijuana for personal use, the number of states is twenty-five.

 

     This opinion, which is accessible by clicking on the link below, is a very interesting commentary on the struggle some courts are having with the proper balance to reach in sentencing in marijuana cases.   

 
Fourth Circuit reverses child pornography conviction finding defendant "in custody" at time of interrogation - also comments on harshness of 15 mandatory minimum sentence for 19 year-old college student

 

     In Hashime a 19 year old young man was the subject of search warrant executed at his home for evidence of child pornography.  The Fourth Circuit reversed the conviction holding that Hashime was "in custody" at the time he was interrogated by investigators. 

 

  Hashime also made an Eight Amendment proportionality challenge to his mandatory fifteen year sentence and, while the Court did not reach that issue as it was reversing the conviction on other grounds, it noted that the district court had expressed "considerable unease" with the mandatory minimums sought by the government in the case.  The Fourth Circuit took up the theme of the district court and stated that "...this was a case in which both police and prosecution applied a heavy foot to the accelerator...attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair."

 

     A concurring opinion by Judge King suggests that the Fourth Circuit's recent line of authority addressing this Eight Amendment issue has "visited ambiguity and confusion upon the bench and bar" and offers that "where a sentence of less than life imprisonment has been imposed upon a defendant, proportionality review under the Eight Amendment is discretionary," citing United States v. Polk, 905 F.2d 54, 55 (4th Cir. 1990).

 

    Addressing the Miranda issue the Court concluded that Hashime was in custody during his three hour interrogation at his residence during the time that investigators were executing the search warrant.  Factors that the Court relied upon included the fact that at 9 a.m. a team of 15-30 state a federal and state law enforcement officers equipped with a battering ram "descended" on 19-year-old community-college student Hashime's home then, holding Hashime by his arm, issued orders to him and marched him to his front yard where officers were "corralling" the other members of his family.  While all were eventually allowed back in the house, they were kept in the living room while officers completed the sweep of the house.  Family members were not permitted to be alone and Hashime's mother, who was recovering from brain surgery, was refused her request to lie down.  Family members were not permitted to be alone and were told that they had to be accompanied by law enforcement officers at all times.  Hashime was interrogated in a storage area in the basement and his family members were not permitted to see him during the three-hour interrogation.   Hashime was told that he did not have to answer questions and could leave at any time, but the Court further noted that Hashime was also told by investigators that "I need need to know - I need to know the truth" and "[L]ike I said at the beginning, the search warrant we got to kind of keep an eye on you....I can't leave you here with nobody here."  The Court disagreed with the district court's findings that Hashime believed that he was free to leave or that Hashime was, in fact,  free to leave.

 

      The Fourth Circuit reminded that the "custody" determination is an objective one and that the mindset of the interrogators is irrelevant.  Using that test, the Court held that Hashime was in custody for purposes of Miranda and the investigators' failure to read him his Miranda rights makes his statements inadmissible.

 

 United States v. Hashime 

(4th Cir. 10-29-13)  

 Defendant re-initiated conversation after invocation of right to silence - merger of robbery with deadly weapon into felony murder sentence - waiver of voir dire issue - admission of victim photograph more probative than prejudicial        

 

          Lovelace was convicted of first degree felony murder, robbery with a deadly weapon and a series of related charges.  Lovelace challenged the denial of his motion to suppress his statements, the trial court's failure to merge the conviction for robbery with a dangerous weapon with first degree felony murder, the trial court's failure to follow up on the questions asked during voir dire  and the trial court's ruling admitting a photograph of the victim with a family member present in the picture.

            The CSA vacated the sentence for robbery with a dangerous weapon, concluding that while the conviction would stand, because the only basis for the first degree murder conviction was on a felony murder basis, the sentence imposed on the underlying felony had to be merged into the sentence imposed with respect to the felony murder conviction.

            The CSA rejected a challenge to the trial court's failure to follow up an affirmative answer by a juror.  Due to confusion over juror's numbers, the follow-up question was asked of a different juror than the one who had given the earlier affirmative answer and no follow-up question was asked of the juror who answered in the affirmative. Defense counsel did not object nor bring this oversight to the attention of the trial court. The CSA concluded the issue was not preserved for appellant purposes and refused to consider it on a plain error basis.

            Lovelace objected to the admission of a photograph of the victim that also contained a picture of a family member.  The CSA concluded that prior to admitting the photograph, the trial court properly weighed the probative value against the potentially prejudicial impact of the photograph and concluded that because the photograph at issue showed the victim wearing a gold chain necklace that was later found in the possession of Lovelace, it's probative value outweighed any prejudicial impact.

When Lovelace was arrested,  he was initially advised of his rights and during that process invoked his right to remain silent. However, after invoking his right to remain silent Loveless continued to speak to investigators.  When this occurred, investigators "cut [Lovelace] off" and advised they could not speak to him unless he waived his Miranda rights. Approximately 10 minutes after the initial advice of rights, Loveless was re-advised of his rights and, this time, waived his rights and subsequently provided an incriminatory statement.

The investigator who had initially advised Loveless of his Miranda rights testified that it was as he was writing "Declined to be interviewed" on the advice of rights form, Lovelace continued to speak to the investigators.  Investigators cut him off and told him that they couldn't talk to him and that they had to advise him of his rights.  Lovelace was further told that in order to speak with the investigators, they had to again advise him of his rights.  That was done.   Loveless then waived his rights and spoke with investigators.

          The CSA rejected Lovelace's argument that his invocation was not "scrupulously honored" and that the statement taken was in violation of the Supreme Court's opinion in Michigan v. Mosley, 423 U.S. 96 (1975). The CSA did not believe the Mosley analysis applied in that there was not a resumption of interrogation by investigators at a later point, after a break in communication,  as in Mosley and that it was Lovelace who was the one who reinitiated contact with the police and, then, waived his previously invoked right to silence.           Reviewing other cases dealing with this issue, including Johnson vs. State, 348 Md. 337, 349-50 (1998), the CSA held that Lovelace's statements were admissible as the police may question a suspect who has invoked his right to counsel or right to remain silent if, as Loveless did, it was the suspect who reinitiated discussion of the events. Noting that if it had not been Lovelace who reinitiated the conversation, his statements to the police probably would not have satisfied the text set forth in Mosley.

            The CSA partially agreed with Lovelace that the rules regarding requesting counsel and the right to remain silence are different.   The CSA then further explained that it was clear that the police's ability to re-interrogate a suspect following his/her invocation of their right to counsel is noticeable more restrictive than with an invocation of the right to remain silent. Both, however, require an ambiguous invocation by the suspect. The CSA continued that there was no reason to distinguish between the right to counsel and the right to remain silence on the issue presented in the instant case, because it was Lovelace who reinitiated conversation with the police, not the police who reinitiated the conversation.

In summary, the CSA held that when viewed in the light most favorable to the State, the record established that Lovelace invoked his right to remain silent, then reinitiated conversations with the police and, thereafter, knowingly and voluntarily waived his right to remain silent. 

Lovelace vs. State (CSA- October 20, 2013)

Police observations sufficient to establish reasonable suspicion for investigatory stop of motor vehicle

 

       The COA affirmed the decision by the CSA which reversed an order of suppression by trial court. The trial court had concluded that the police officers who had stopped Holt did not possess reasonable suspicion sufficient to justify detaining Holt for an investigatory detention.

            The COA held that the police had specific and articulable facts that provided the required reasonable suspicion.  These facts included the following:

  1. Holt met Daniel Blue who was a known drug dealer;
  2. Blue had been observed meeting with Claude Townsend approximately 2 weeks prior to  Holt's meeting with Blue and circumstances surrounding each meeting were very similar in nature - and after the earlier meeting with Blue, Townsend had been stopped by the police and narcotics had been seized from Townsend;
  3. Holt and Townsend were both waiting for Blue in a specific location when he arrived  for the meetings;
  4. Both encounters lasted only approximately 2 minutes;
  5. Both Townsend and Holt parted ways with Blue after their respective meetings,
  6. Blue looked around the area throughout both meetings;
  7. Blue did not look around at the North Avenue courthouse where he had been observed earlier;
  8. Holt and Blue moved from public space to the private interior of Holt's jeep; and
  9. After his court appearance in Baltimore City, Blue drove to Baltimore County where he exited an apartment with a Rubbermaid container and then immediately returned to the area of Baltimore City not far from the Courthouse where he had been seen earlier that day prior to his meeting with Holt.

The COA noted that an individual's mere association with a drug dealer does not by itself create reasonable suspicion that a person has committed a drug related crime.  In this case, however, the COA  concluded that the facts established by the police witness demonstrated that this was not a case of a simple association with a drug dealer. Finding that the circumstances observed by the police during the meeting between Holt and Blue had substantial similarities to the earlier meeting between Blue and Townsend, that the detectives not only had general experience with drug transactions but the police also had experience observing Blue himself engage in drug transactions. Those facts together with Blue's conduct both before and after his meeting with Holt, looking at the totality of the circumstances, established the requisite reasonable suspicion.  Reminding that reasonable suspicion does not deal with hard certainties but with probabilities, the COA held that the detectives possessed a reasonable and particularized basis to suspect that Holt had committed drug related offenses.  Inasmuch as the police had reasonable suspicion to conduct an investigatory stop of Holt the trial court erred in suppressing the observations by the detectives made during and immediately following the investigatory stop. 

Holt vs. State (CSA October 28, 2013)

 

"Mere presence" in stolen motor vehicle - sufficiency of evidence to support theft and UUV conviction
 

          In Re Landon addresses the question as to whether mere presence in a vehicle, by a passenger, even with knowledge that the vehicle is stolen, is sufficient to sustain a guilty finding for theft.

            The vehicle at issue was stolen on September 17, 2009.  On September 29, 2009  the owner of the vehicle observed her vehicle leaving a gas station. She called 911 and followed the vehicle until it parked. The occupants went into the house. The occupants later left in the vehicle and she followed the vehicle again. The police eventually met up with her in the area of the stolen vehicle and then attempted to pull over the stolen vehicle. The vehicle drove through the front yards of several residences and came to a stop at which point the five occupants of the vehicle, including Brandon, got out of the vehicle and fled on foot.

            The CSA reviewed cases from other jurisdictions which held that presence, when presence with other incriminating evidence, may be sufficient to establish theft. That other incriminating evidence included factors such as flight from the police by the driver and the passenger; use of the vehicle by the passenger and the driver in the commission of a crime; the passenger's use of a false name and the relationship between the driver and the passenger.

            The CSA distinguished the instant case from In Re Melvin M. 195 Md. 477 (2010) in which a conviction was reversed and which held that "mere presence in a vehicle, without more, is insufficient to show possession necessary to sustain a conviction for the theft of the automobile."  Here, the CSA stated, the State must present some evidence "that the accused took some action which demonstrates his direct influence over the car."  Noting that the conceptual lynchpin underlying a finding of possession of a stolen vehicle by a passenger is the presence of "other incriminating evidence" that tends to show a joint enterprise or acting in concert by the driver and the defendant passenger. Here, the presence of flight, the use of the vehicle in a crime or other joint activity and a relationship between the driver and the passenger [Brandon] were all present. Interestingly, although there was evidence of flight, the "joint activity" in the instant case was not to commit a crime but rather to go to a friend's house. The relationship between the driver and Brandon was that their families had been friends had been friends for "all long as we can remember." The CSA concluded that those facts were sufficient evidence to support the finding of involvement of Brandon of joint possession of the stolen vehicle.

            The CSA then addressed the question of sufficiency of the evidence to establish guilty knowledge. Following the analysis by Burns v. State, 149 Md. App 526  (2003), the CSA held there were sufficient "ad hoc circumstances" of the Brandon's joint possession to support a finding that vehicle was probably stolen. It based that conclusion on the fact that Brandon was in a vehicle that had been stolen 9 days earlier; that the driver was a longtime friend; that Brandon knew the driver did not own a car much less a late model car; that Brandon had made an inquiry of the driver as to where he got to vehicle from and Brandon had asked whether it was stolen.  The final factor was the evidence that Brandon fled when the police with emergency lights on attempted to stop the vehicle.

            The CSA similarly concluded that that evidence was also sufficient to support the conviction for unauthorized use of a motor vehicle under C.L.7-203.

            The CSA finally reviewed whether Brandon violated C.L. 7-105 which prohibits an individual from knowingly and willfully taking a motor vehicle out of the owner's lawful custody, control or use without the owner's consent. Rejecting Brandon's contention that there was insufficient evidence to support a finding of involvement because there was no evidence to show that he had been involved in the initial taking of the vehicle, the CSA concluded the C.L. 7-105 does not require proof that Brandon was involved in the original taking of the vehicle out of the custody or use of it's owner. Because the CSA concluded that the evidence was sufficient to support a finding of the involvement of the crime of unauthorized use of a motor vehicle under C.L. 7-203, it concluded the same evidence would support a finding of involvement under C.L. 7-105. 

In re: Landon. (CSA October 30, 2013)