UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC

Terry v. Ohio, 392 US 1 (1968), is one more tool for police to trample on the Fourth Amendment right against unreasonable searches and seizures. Minnesota v. Dickerson, 508 U.S. 366 (1993), opens the door for cops using "plain feel" to pull non-weapon items from people's pockets during Terry frisks, on probable cause that the item is contraband. (Image from public domain).

In 1993, the United States Supreme Court opened the door for cops using "plain feel" to pull non-weapon items (rather than just suspected weapons) from people's pockets during Terry frisks (392 US 1 (1968)), on probable cause that the item is contraband. Minnesota v. Dickerson, 508 U.S. 366 (1993).

Fortunately, the Supreme Court agreed that the seizure of crack cocaine from Mr. Dickerson violated his Fourth Amendment rights in the foregoing case, since the cop, during a Terry frisk, recognized that the lump in his clothing "was contraband only after 'squeezing, sliding and otherwise manipulating the contents of the defendant's pocket' -- a pocket which the officer already knew contained no weapon." Minnesota v. Dickerson, 508 U.S. at 378.

In upholding the suppression of the drugs seized from Mr. Dickerson's pocket, the Supreme Court explained: "Where, as here, 'an officer who is executing a valid search for one item seizes a different item,' this Court rightly 'has been sensitive to the danger . . . that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.' Texas v. Brown, 460 U.S. at 748 (STEVENS, J., concurring in judgment). Here, the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to 'the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby.' 392 U.S. at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize,  see id at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U.S. at 1049, n.14; Sibron, 392 U.S. at 65-66."  Dickerson, 508 U.S. at 378.

In 1996, Maryland's highest court gave judges some additional things to consider in determining whether a drug seizure during a Terry frisk meets Dickerson's strict requirements that the seizure not take place with any feeling beyond a frisk required for seeking weapons, and that the seizure be upon probable cause:  

"To be sure, Officer Ottey's testimony provided a general description of his experience in conducting drug searches. It did not disclose, however, the number of times Officer Ottey had identified crack cocaine through a layer of clothing during previous pat-down searches or describe how crack cocaine feels to the touch. That testimony, thus, did not tend to explain how Officer Ottey was able to identify crack cocaine by touch; it did not shed any light on the reliability of his opinion in that regard. In fact, aside from the opinion, the only other evidence of the officer's tactile acuity was his affirmative response to the question whether, in the past, he had found crack cocaine on defendants while patting them down.

"The State also elicited from Officer Ottey testimony regarding how crack cocaine typically is packaged, but, having done so, did not further attempt to connect that testimony to the search in question. In short, Officer Ottey's suppression hearing testimony that it was immediately apparent to him that what he felt was crack cocaine was nothing more than a conclusion and, as such, could be rejected. L. McLain, Maryland Evidence § 705.1. n10. After hearing Officer Ottey's testimony, the motions judge described Officer Ottey's level of certainty as a 'suspicion' and commented, 'It could be many things there that could give that same sense of touch. That's the troubling aspect of it.' It is clear, therefore, that the motions judge was not convinced that this difficult identification was justified on the basis of the evidence before him." Jones v. State, 343 Md. 448, 464-65 (1996). 

The foregoing discussion in Jones v. State also applies to Fourth Amendment reviews beyond Terry frisks, including such situations as my client who was acquitted because the trial judge ultimately agreed that the cop who stopped him for having a dead taillight did not have sufficient information late at night to have formed probable cause that the two grams of material in a package on the floor was marijuana. Jon Katz.

A drug possession conviction requires probable cause to seize the alleged drugs; proof that the seized item constitutes illegal drugs; and proof beyond a reasonable doubt of knowledge, dominion and control over the alleged drugs. (Image from public domain.)

When I started doing criminal defense over fifteen years ago, many lawyers with more criminal defense experience than I told me that most criminal defendants have committed one or more of the criminal counts against them, most will be found guilty (particularly in federal criminal cases), and most will lie to their lawyers.

Nevertheless, the more I interacted with successful criminal defense persuaders -- and the more I won cases where the cards initially seemed stacked against my clients --  the more I felt that the acquittal ratio could be increased through a devotion by all criminal defense lawyers to keep learning, practicing, improving, and transcending local and national groupthink, rather than accepting any status quo. Sunwolf implores that "Reality is no obstacle," and that is not farfetched. John D. Delgado shows lawyers not to fear any reality of the case, to the point of being willing to ask the defendant right off the bat at trial, if s/he testifies, the question all the jurors want to know: "Did you do it?" Lisa Monet Wayne has shown lawyers how to overcome their fears of going to trial in difficult cases, and to turn the cases' facts into their own (including reducing a prosecution of possession with intent to distribute a few grams of cocaine to a reminder that a diner sugar packet weighs but one gram).

It is important for the criminal defense lawyer -- at trial -- to erase a belief in the client's guilt and to have a compelling story showing why the client is innocent. Sometimes reaching that compelling story comes from remembering how the criminal defense lawyer first reacted to the criminal charges, and how the lawyer arrived at a conviction that the prosecution's evidence is shaky at best.

Finally, the more a lawyer expects the client to lie to the lawyer and to the judge and jury, the more that will become a self-fulfilling prophecy. Asking a client to trust his or her lawyer enough to tell the lawyer the truth is a tall order, in part because the client usually does not know the lawyer from Adam when the representation begins. The lawyer must earn that trust, and convince the client that all confidential information from the client will be kept confidential unless the client authorizes the lawyer to reveal the information. When the resources are available, sometimes a skilled trial or psychological consultant's assistance will be needed to get to the root of any tendency by the client to lie, and to draw out honesty. Sometimes the client will be more truthful when the lawyer shares some relevant and even sensitive and painful personal information about the lawyer.

Once the lawyer shows confidence in the client -- combined with giving the client confidence in the lawyer and in the lawyer's skills, experience, and fearlessness -- the client will be more willing to plead innocent when the lawyer so advises, despite the rampant fear of so many criminal defendants about entering innocent pleas.

A few days ago, a client accepted my advice to plead innocent to a marijuana possession charge. A few colleagues who frequently appear in this particular Virginia District courthouse warned me about my supposedly low potential of winning this case, where the police officer stopped my client's car for a burned-out taillight, claimed to have seen my client reaching behind him as the officer approached the car, and claimed to have seen a green leafy substance in a bag on the rear floorboard in the direction where my client reached, containing "suspected marijuana". Our case theory was that possession was absent, due to a failure of the evidence to prove beyond a reasonable doubt that our client exercised knowledge, dominion and control over what turned out to be under two grams of marijuana, which is not enough to roll more than two regular-sized marijuana cigarettes/joints. My primary ground for suppressing the marijuana was that no cop has sufficient vision late at night in the rain to have any idea about the contents of the bag purportedly containing such a small quantity of marijuana.

Our trial was held before a Virginia District Court judge, because in Virginia misdemeanors (offenses jailable for no more than one year) must be tried in District Court without a jury before a de novo jury trial is available. Va. Const. Art. I, § 8; McCormick v. Virginia Beach, 5 Va. App. 369 (1987) (confirming the jury trial right for all de novo criminal appeals to a Virginia Circuit Court, as opposed to the federal Constitution's limit of the jury trial right to petty offenses). The United States Supreme Court has upheld the Constitutionality of two-tiered state systems that require a bench trial before a de novo appeal may proceed by jury. Ludwig v. Massachusetts, 427 U.S. 618 (1976), as has the Virginia Supreme Court in Manns v. Commonwealth, 213 Va. 322 (1972).

The judge initially denied my motion to suppress the marijuana, despite my arguments that included the cop's not even bringing the alleged marijuana and packaging with him to court, for the judge to reach his own conclusions about the officer's ability to have probable cause that he saw marijuana. Providing the judge the bag and the alleged marijuana would have let the judge see for himself that the officer actually seized the item first before having sufficient information to know the item was marijuana.

The judge refused to keep out the drug analysis report (I subpoenaed and questioned the chemist) despite my arguments about the failure to establish chain of custody, the inadmissible hearsay in the chain of custody report, and failure to produce the alleged marijuana into evidence.

During my closing argument, I reincorporated by reference all my previous arguments at trial. I then focused on the failure of the prosecutor to prove beyond a reasonable doubt that my client had possession -- i.e., knowledge, dominion and control -- over the marijuana. Drew v. Com., 230 Va. 471 (1986).

However, I did not get far into my closing argument before the judge stopped me in my tracks. I recognized that something good probably was coming down the pike, because judges are forbidden from finding guilt without providing sufficient opportunity for the defense to present a closing argument (although I once saw a Maryland judge violate this rule, only for him accidentally to have said "not guilty" rather than "guilty" and to have conceded that once those words "not guilty" passed his lips, he never could summon them back). The judge said that although he believed this was my client's marijuana, he did not believe that the police officer had sufficient grounds late at night to know this was marijuana (which I argued in the first place).

As the judge was talking, I told my client he had won, and shook his hand. My client was in disbelief. Once the judge finished talking, my client was still caught in disbelief. Therefore, I said to my client: "We have won, and you have been found not guilty. Let's get out of here." The last thing we needed was to stick around for the judge to have said that he was changing his mind. 

Last month, I blogged about how I managed to continue practicing criminal defense in an unjust system. Such victories as this certainly make it easier to do so. Jon Katz.

T'ai chi helps the negotiator to listen, and to push effectively without being pushy. (From the public domain, showing the single whip position of yang style t'ai chi.)

Sixteen years ago, a seasoned and able civil rights lawyer told me about the importance for a litigator to have strong negotiation skills, and not just strong courtroom skills. In that regard, he talked about the importance of knowing what the other side wants. Those words are second nature to me by now, but at that time, with no more than two court appearances under my belt (an asylum hearing and a deportation hearing in immigration court), those words rang like a new message.

Knowing what the other side wants is a true art, and requires being able to quiet one's mind, so that the negotiator may hear the other side through the opponent's words, through actions, between the lines, and through anticipating the other side's next moves, as would a master chess player or t'ai chi master. I have written about negotiation skills and strategy here, here, and here.

Recent testimony to the importance of patient and skilled negotiating comes from this month's breakthrough in China in the nuclear arms negotiations with North Korea. All is not yet solved, and distrust remains between North Korea and the United States, but they apparently have been investing the time to get to yes.

Sometimes, successful negotiating requires one or more mediators or negotiating parties. In this instance, China's participation may have played a pivotal role. As the New York Times reports: '''If they renege on this,' said one senior Bush administration official, who would not speak on the record because the deal had yet to be signed, 'they are sticking their fingers into the eyes of the Chinese.'''

I am very interested to know the extent to which internal debates took place in the Bush Administration (and in the North Korean government, if any government officials there feel permitted to debate without the potential penalty of prison or worse) about the extent to use diplomacy rather than baring and even using fangs. I am also interested in knowing the extent to which the deal with North Korea was reached through skilled negotiation or more mediocre negotiation skills and strategy. Then again, maybe North Korea's very possession of nuclear weapons made the United States more willing to spend time negotiating than was the situation with Saddam Hussein's Iraq, which had no nuclear weapons when Gulf War II started.

A colleague once said that lawyers at one of the prosecutors' offices that I frequently deal with have in the past (and possibly in the present) been trained that their plea discussions are offers -- apparently sometimes of the take-it-or-leave-it kind -- rather than plea "negotiations". However, even with that office, sometimes only after the dust has settled by the courtroom being cleared of most of the docket for my trial to start, on several occasions I have negotiated favorable settlements through negotiating on goals rather than positions.  

For me, a critical ingredient to successful negotiations is the willingness to agree to disagree, rather than ranting and raving about the unreasonableness of the other side's proposals and positions. With North Korea and the United States, that must not have been easy at all.

In any event, for litigation, a case is more likely to settle (sometimes with a result better than a guilty finding, in criminal cases) when the lawyer fully prepares the case to go to trial, and the opposite is true when the lawyer has only prepared the case to be negotiated. Sometimes such full trial preparation wears the opponent down, to help open the doors to a negotiated result. For litigation, the purpose of negotiation should not be any fear of going to trial, but instead an effort by both sides to hedge their bets. Time, patience, intuition, empathy, deep listening, flexibility, selflessness (to a point), and substantial firepower are among the critical ingredients of successful negotiations in litigation. Jon Katz.

Chief Judge Bell is Brown's sole dissenter

The United States Supreme Court has not decided the extent to which the police may seize non-residents visiting a home being searched by police pursuant to a valid search warrant. However, on February 7, 2007, the Maryland Court of Appeals provided police a green light to seize such visitors at least to make some initial inquiries. Brown v. State, __ Md. _ (Feb. 7, 2007). As a result, Maryland's highest court upheld the conviction of such a visitor whom the police seized, asked if he had any weapons or drugs (hopefully he was Mirandized, but Brown  is silent on that (Cotton v. State, 386 Md. 249,  cert. denied, 126 S. Ct. 212 (2005) requires such Mirandizing for such a seizure)), and heard him reply that he had one-quarter pound of marijuana in his waist.

Brown relies heavily on Cotton v. State, 386 Md. 249,  cert. denied, 126 S. Ct. 212 (2005), which states: "In executing a warrant such as that issued here, the police for a premises known to be an open-air drug market where the police are likely to encounter people who may well be dangerous, they are entitled, for their own safety and that of other persons, to take command of the situation and, except for persons who clearly are unconnected with any criminal activity and who clearly present no potential danger, essentially immobilize everyone until, acting with reasonable expedition, they know what they are confronting. It really cannot be otherwise."

The three-judge Cotton dissent -- with former Maryland United States Attorney Battaglia writing -- insisted:

"It is disingenuous to assert that the danger posed to police under such circumstances was of such magnitude as to warrant the detention of all persons merely present in some capacity on the premises. Surely, the overwhelming number of officers on the small property dispelled any such need to engage in a wholesale detention. In light of the overwhelming number of officers at the scene and the diminutive size of the property, the Majority cannot in good faith argue that the threat to police outweighed Cotton's interest in being free from a warrantless seizure."

Now, in the subsequent Brown decision, Judge Battaglia and Judge Greene -- both who dissented in Cotton -- joined in the judgment only, without standing by the court's reasoning. Their silence makes it unclear whether they joined the judgment merely by considering Cotton to be controlling stare decisis.  Kudos to Chief Judge Bell for dissenting (sadly, the sole dissenter), stating in full: "I adhere to the views expressed in the dissenting opinion in Cotton v. State, 386 Md. 249, 872 A.2d 87 (2005)." Jon Katz.

The Defendant in Jones v. State unsuccessfully challenged chain of custody of DNA evidence. (Image from NASA's website).

Several times, I have won drug possession trials in Maryland by successfully challenging the prosecutor's failure to establish that the drugs tested by the testifying chemist were the same items seized by the police.

A recent appellate case provides an overview of Maryland chain of custody law: