I take the opposite approach and employ a scorched earth policy of fighting every case on every level before even considering a plea to include attacking the validity of search warrants which many attorneys never even consider. Here is a written motion to suppress we filed in a case recently attacking the warrant and moving to suppress the evidence.

II. Facts
The following facts may be gleaned from the affidavits submitted to support the application for the search warrant for Mr. Doe’s residence (attached as Exhibit 1):
On April 12, 2002, the affiant executed a search and seizure warrant at a certain location on a certain individual whose identity is withheld for fear of retaliation (CS-1). CS-1 was found in possession of a large quantity of cocaine. After being Mirandized, CS-1 informed the affiant that his supplier’s name was John Doe, a black male, approximately twenty nine years old. CS-1 stated that he had been purchasing cocaine from John doe since 1996 and has been to Doe’s home in Carroll County on several recent occasions. CS-1 stated that he had purchased cocaine from that location and other pre-arranged locations. On that date, CS-1 directed the affiant to Doe’s home, identified as 1234 Main Street..
The affiant observed a silver BMW parked in the driveway, tag # listed to Jane Doe. CS-1 identified the BMW as one of the vehicles Doe utilized in delivering cocaine. The affiant conducted spot surveillance and observed a red colored Chevrolet Blazer pull up in front of that address. A black male left the car running, went inside the address for two to three minutes and then left the area. Also on that date, the affiant obtained BGE records which showed the utilities at that address are listed to Jane Doe.

CS-1 agreed to make a controlled call to John doe and order a quantity of cocaine. CS-1 stated that Doe agreed to sell him cocaine and that they were going to meet at Mars Music on Powers Lane in Baltimore County. The affiant established surveillance of Mars. Approximately one hour later, the affiant observed a black male matching the physical description of John doe pull onto the Mars parking lot operating the silver BMW. Detectives approached the black male operator and stated, “you know what we’re looking for.” The black male, identified as John doe, stated, “It’s in my jacket” and motioned his head in the direction of the interior of the BMW.
Detective Disney conducted a K-9 scan of the BMW. Disney’s dog gave a positive alert and from inside the jacket pocket- 1 blue plastic bag containing one clear plastic bag with 10 ounces of suspected cocaine (street value approximately $28,000) and from his person- $1,024 of U.S. currency. Detectives mirandized John doe and advised that they were going to his house at 1234 Main Street. Detectives asked if anyone else lived at that address. Doe stated that his wife lived there and there were two guns in the home. Detectives then went to the address with keys seized from Doe. The keys fit the locks at that address. A white Volkswagon Jetta was parked in the driveway which John doe had previously stated was used by his wife.
III. Argument
A. Mr. Doe was illegally seized in violation of the Fourth Amendment.

Although the Fourth Amendment is not implicated in every police-citizen encounter, the Fourth Amendment is implicated once an individual has been “seized,” that is, once an individual is no longer “free to leave.” Florida v. Royer, 460 U.S. 491, 502 (1983); United States v. Wilson, 953 F.2d 116 (4th Cir. 1991). In determining whether a seizure has occurred, the test is whether in view of all the surrounding circumstances, a reasonable person would have believed that he was not free to leave. Michigan v. Chesternut, 486 U.S. 567, 573 (1988). In this case, Mr. Doe was approached by the affiant and members of the Carroll County police department. The police approached Mr. Doe as he was exiting his vehicle with guns drawn on the open parking lot and began questioning him- “you know what we’re looking for.” No reasonable person would have believed that he was free to ignore the officers and leave the area. Therefore, Mr. Doe was seized at that time.
That seizure was illegal. There was no reasonable articulable suspicion to seize Mr. Doe. The confidential source (CS-1) had no reliable track record. In fact, the confidential source had just been found with a large quantity of cocaine during the execution of a search and seizure warrant for his/her residence and was clearly looking to help himself/herself by providing any information (accurate or not) to be cooperative. There was nothing of significance which was corroborated by the police. The alleged controlled call was not recorded by the police, nor were the police able to determine for themselves that drugs were discussed during the call. The conversation between the confidential source and Mr. Doe could have been completely innocent. In fact the conversation appeared completely innocuous to anyone listening. The affiant relied completely on CS-1's interpretation of that phone call. The fact that Mr. Doe arrived at the location is not grounds to reasonably conclude that there was criminal activity afoot. There was no basis for the illegal seizure of Mr. Doe.
B. The subsequent search of Mr. Doe’s car was illegal.

Because Mr. Doe was illegally seized, the subsequent search of the vehicle was also illegal as fruit of the poisonous tree. Part of the probable cause calculation by the police was based on the alleged statement by Mr. Doe “it’s in my jacket.” Mr. Doe denies making that statement. Assuming Mr. Doe made this statement, it was made during his illegal seizure and is therefore fruit of that illegal seizure and cannot be used to establish probable cause to search Mr. Doe’s vehicle. The Government also alleges as part of its probable cause to search the vehicle that the narcotics dog alerted to the presence of narcotics. Mr. Doe denies that the narcotics dog alerted. Additionally, Mr. Doe maintains that the dog was placed inside his vehicle to see if the dog would alert. If the dog was placed inside the vehicle, this is tantamount to a search of Mr. Doe’s vehicle. Therefore, any evidence found in the vehicle must be suppressed as fruit of the poisonous tree.
C. This Court must excise all warrant affidavits of information obtained in violation of the Fourth Amendment.

Under the "fruit of the poisonous tree" doctrine, all evidence derived from the exploitation of an illegal search or seizure must be suppressed, unless the Government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation. Brown v. Illinois, 422 U.S. 590, 602-03, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). In this case, there were several violations of the Fourth Amendment and no break in the chain of events which is sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation. The information acquired in violation of the Fourth Amendment was then used to support the issuance of the warrants. First, Mr. Doe’s alleged statements were made while Mr. Doe was being detained subject to an illegal seizure of his person. Therefore, any and all statements made by Mr. Doe must be suppressed and excised from the warrant. Secondly, as discussed above, the search of Mr. Doe’s car and recovery of drugs was in violation of his Fourth Amendment rights and must also be excised from the warrant.

The police also illegally seized Mr. Doe’s keys and used those keys to illegally activate the lock at Main Street.. The police then entered Mr. Doe’s residence and conducted an extensive search of the residence before applying for and obtaining a warrant. Mr. Doe’s wife was present and can verify that the warrantless search occurred. (See Affidavit of Jane Doe attached as Exhibit 2) During the illegal search, the officers found the two guns. The affiant then used the knowledge of the guns to support the issuance of the warrant. To cover the warrantless search, the affiant falsely alleges that Mr. Doe told him that there were guns in the home. Prior to their illegal entry, no exigency existed to justify the illegal entry into Mr. Doe’s home. As a result of these Fourth Amendment violations, all of the illegally obtained information must be excised from the warrants by this Court. The inclusion of certain illegally obtained information does not require suppression of the evidence seized under the warrant (“fruit of the poisonous tree) if, excluding the illegally obtained information, probable cause for the issuance of the warrant could still be found. United States v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987). In this case, when this Court excises all of the illegally obtained information, probable cause for the issuance of the warrant cannot be found.
D. Motion to Suppress Any Statement made by Mr. Doe as violative
of Miranda v. Arizona.
Not only were Mr. Doe’s alleged statements a product of his illegal seizure, they were also in violation of Miranda. Miranda warnings are required when a subject is interrogated while in custody. Miranda v. Arizona, 384 U.S. 436 (1966); Dickerson v. United States, 530 U.S. 428, 444 (2000). The test for determining custody is whether, under the totality of the circumstances, the “suspect’s freedom of action is curtailed to a degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984). It is evident that when Mr. Doe was approached and stopped by the officers as he was walking away, he was no longer free to leave. Therefore, any statement attributed to Mr. Doe must be suppressed.

E. No probable cause existed for the issuance of the warrant to search
Doe’s home.

The Fourth Amendment requires that no search warrant shall issue without probable cause. Probable cause means a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). This Court must determine whether there is substantial evidence in the record to support the magistrate’s decision to issue the warrant. Massachusetts v. Upton, 466 U.S. 727, 728 (1984). While this Court should pay “great deference” to findings of probable cause, it does not mean that warrants should be upheld when based on objectively unreasonable grounds for believing the warrant is valid. Illinois v. Gates, supra, 462 U.S. at 236.
In United States v. Lalor, 996 F.2d 1578 (4th Cir. 1993), the Fourth Circuit found that the affidavit was devoid of any basis from which the magistrate could infer that there was evidence of drug activity at Lalor’s residence. The Court noted that the affidavit did not describe circumstances which indicated that such evidence was likely to be stored at Lalor’s residence nor did it explain the geographic relationship between Lalor’s residence and the area where drug sales occurred. The Court emphasized “residential searches have been upheld only where some information links the criminal activity to the defendant’s residence.” Id. at 1583.

In this case, the affidavit reflects that a confidential source related that Mr. Doe distributed cocaine. The source related that he had purchased cocaine from Mr. Doe’s residence. The affiant provided no information as to the confidential source’s reliability. See Illinois v. Gates, 462 U.S. 213, 233 (1983) (holding that an informant’s reliability and basis of knowledge are two factors relevant to probable cause determination) The source stated that Mr. Doe lived at the Sandcroft Court address and pointed out the residence. At best, the confidential source provided innocent details regarding Mr. Doe’s residence which anyone could know.
In United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), the Fourth Circuit explained that in evaluating whether an informant’s tip establishes probable cause, the degree to which the report is corroborated is an important consideration. The affidavit in Wilhelm, as in this case, did not adequately support a finding of probable cause. It depended on information from an unnamed informant and provided no indication of the informant’s truthfulness or reliability. The Fourth Circuit also noted that corroboration of directions to Wilhelm’s house was not enough. The Court stated, “almost anyone can give directions to a particular house without knowing anything of substance about what goes on inside that house.” Id. at 121. The unreliable confidential source’s allegation that he purchased drugs from Mr. Doe at that address was in no way corroborated by the police.

Thereafter, the confidential source allegedly made a controlled call to Mr. Doe. The affiant did not record this call and relied totally on the confidential source to interpret the call. The affiant provided no specific information about the call- which phone number was used, and most importantly, was the call to Mr. Doe’s residence, etc. The fact that Mr. Doe arrived at the location where the source indicated he would appear also does not indicate that narcotics would be found at Mr. Doe’s residence. Seizure of drugs from Mr. Doe’s vehicle does not establish a nexus to Mr. Doe’s home, as demonstrated in Lalor. The alleged observation by the affiant of the Red Blazer is innocuous and in no way corroborated drug dealing at Mr. Doe’s residence. It is important to note that Mr. Doe was not seen or surveilled from his home to the Mars Music Store. There is no connection of drug dealing to Mr. Doe’s residence other than the confidential source’s unsupported assertion. There is insufficient nexus to connect criminal activity to the place to be searched, Mr. Doe’s residence. Therefore, any evidence seized from the residence must be suppressed.
F. Any evidence seized from the search of the bank account and safe deposit box must be suppressed.
The Affidavit in Support of the warrant for the Bank of America Bank Account and safe deposit box (attached as Exhibit 3) contains information which is the product of Mr. Doe’s illegal seizure and the illegal search of Mr. Doe’s home and vehicle. Therefore, any and all evidence seized from the bank account and safe deposit box must be suppressed as fruit of the poisonous tree.
G. Any evidence seized from the search of the hotel room at the Red Roof Inn in Jessup, Maryland must also be suppressed.

The Affidavit in Support of the warrant for the Red Roof Inn, Room #123 (attached as Exhibit 4) contains information which was learned during the illegal search of Mr. Doe’s home and the illegal search of the bank account and safe deposit box. Therefore, any and all evidence seized from the hotel room must be suppressed as fruit of the poisonous tree.
H. A Franks v. Delaware Hearing Must Be Conducted Due to the False Information in the Warrant Application Affidavit.

To be entitled to a Franks hearing, the defendant “must make a substantial preliminary showing that a false statement was knowingly and intentionally, or with reckless disregard for the truth, included by the affiant in the warrant application,” and the offending information must be essential to the probable cause determination. Franks v. Delaware, 438 U.S. 155-56 (1978). A hearing can be denied only where the offending information is excluded and probable cause remains in the affidavit. Id. The Fourth Circuit also applies Franks to intentional, material omissions. See United States v. Colkey, 899 F.2d 297, 301 (4th Cir. 1990).
The affidavit in support of the search contains false statements. The affiant alleges that Mr. Doe made certain statements (“it’s in my jacket”; that his wife lived with him and there were two guns in the home at 1296 E. Sandcroft Road) which contributed to the magistrate’s finding of probable cause. Mr. Doe denies making these statements. (See Affidavit of John doe attached as Exhibit 5). The police knew that the guns were present because they had illegally searched the residence without a warrant. Moreover, these alleged statements were made in violation of Miranda.
Furthermore, Mr. Doe denies the presence of the Red Blazer at his residence. Mr. Doe was home during the time period that the affiant alleges that the Red Blazer came to his home. It simply did not occur. It is interesting to note that the affiant indicated that he could see the tag number of the BMW in the driveway but the affiant does not make note of the tag number of the alleged Red Blazer. If the affiant had seen the Blazer, an alleged drug customer of Mr. Doe, one would expect that the affiant would have copied the tag number or followed the vehicle to attempt to determine the person’s identity.

Additionally, the affiant omits relevant information from the warrant. For example, the tag number of the BMW observed at 1234 Main Street is listed to 1234 Bank Street, Baltimore, Maryland, not Mr. Doe’s residence. Mr. Doe’s driver’s license which was seized by the police upon arrest at the Mars Music Store lists his address as 1234 West Street, Columbia, Maryland. This is important information which was omitted that the magistrate should have been provided in determining whether probable cause existed to search Mr. Doe’s home, 1234 Main Street. There was no evidence other than the unconfirmed word of an unproven confidential source that Mr. Doe lived at Main Street. These matters must be explored at a Franks hearing.
I. There could be no good faith reliance on this warrant.
In Leon v. United States, 468 U.S. 897, 104 S.Ct. 3405 (1984), the Supreme Court recognized a good faith exception to suppression of evidence obtained from a deficient warrant. The good faith exception, however, does not apply:
first, when the warrant is based on an affidavit containing “knowing or reckless falsity”; second, when the magistrate has simply acted as a “rubber stamp” for the police; third, when the affidavit does not “provide the magistrate with a substantial basis for determining the existence of probable cause”; and finally, when the warrant is so “facially deficient” that an officer could not reasonably rely on it.
United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir. 1996) (quoting United States v. Leon, supra, 468 U.S. at 923, 104 S. Ct. at 3420. The good faith exception cannot save this unconstitutional search. As previously stated, the affidavit contains material false statements. These false statements are material. Therefore, there can be no good faith reliance on this warrant.
J. The confidential source’s identity and location must be disclosed.

The question of whether the identity and location of a confidential informant must be disclosed requires a balancing of interests.

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance rendered nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crimes charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

Roviaro v. United States, 353 U.S. 53, 62 (1957). In his treatise, United States Magistrate Judge Horn observes that “the key factor in determining whether disclosure is required has been the confidential informant’s role in the investigation.” C. Horn, Fourth Circuit Criminal Handbook §79 at 103 (2000 ed.). Thus, while the identity of a “mere tipster” need not be disclosed, disclosure will likely be mandated where the confidential informant is an active participant in the crime. United States v. Price, 783 F.2d 1132, 1138 (4th Cir. 1986).

In this matter, the confidential source was an alleged active participant in the investigation and crime in as much as he/she stated that he/she had received narcotics from Mr. Doe at Mr. Doe’s residence; and, most critically, participated in an alleged controlled call with Mr. Doe which he alone interpreted for the law enforcement officers. Manifestly, Mr. Doe is entitled to learn the identity and location of the confidential source whose active participation in alleged crimes with Mr. Doe was central to the affidavit in support of the warrant. The disclosure of the confidential source is particularly necessary under the circumstances of this case where Mr. Doe actively denies participating in the criminal acts alleged. The disclosure of the informant’s identity and location is of particular importance to the issue of whether reasonable suspicion existed to seize Mr. Doe. Therefore, the Government must disclose the identity and location of the confidential source.
CONCLUSION
For the aforegoing reasons, Mr. Doe respectfully requests that this Honorable Court suppress any and all evidence seized from his residence, the bank, the safe deposit box and the hotel room suppress any alleged statements made by him, and order the disclosure of the identity of the confidential source.

The Facts:

Baltimore County police see a drug transaction conducted from a Lincoln navigator. The police stop the buyer who says he bought drugs from the vehicle. The police lose sight of the vehicle. Four hours later, the police stop the car with guns drawn. The defense argued there was no probable cause to stop the vehicle four hours later because the police had no description of the sellers of narcotics four hours before. Judge Dana Levitz of the Circuit Court for Baltimore County said there was probable cause and sentenced the defendant to ten years without parole.

The Court of Special Appeals vacated the conviction and agreed that there was no probable cause to arrest the occupants of the vehicle when there was no reason to believe that the same persons who operated the vehicle earlier were occupying the vehicle at the time of the arrest. Criminal appeals specialist Erin Murphy briefed and argued the appeal.

Facts:

The victim was stabbed in Hagerstown Maryland. Based on a review of images captured by security cameras, Adams was a suspect. Adams fled the scene but was picked up on a parole violation in Baltimore. He was brought back to Hagerstown for questioning. He was advised of his rights per Miranda, executed a waiver and made inculpatory statements. Adams was then charged with first degree murder and counsel entered his appearance. Months later, the prosecutor asked the detective to serve on Adams the notice seeking life without parole. The detective went to the detention center. Criminal defense counsel was not present. After seeing the notice, Adams said “why is the state going after me so hard?” The detective said “because you stabbed a guy 32 times.” Adams responded that he only stabbed the guy seven times and then went into detail about where he stabbed him. Defense counsel moved to suppress the statements. The trial court denied his motion.

Ruling:

The Court of Appeals, citing Edwards v. Arizona and other cases, noted that there were no Miranda warnings given at the second meeting and therefore there was no intentional knowing and intelligent waiver of his right to have counsel of record present. The Court held that, under the totality of the circumstances, any reasonable police officer would have reasonably anticipated Adams would respond to the detective’s accusation and that regardless if the detective acted in good faith, this encounter was the functional equivalent of interrogation.

In Graham, the Court ruled in a 6-3 decision that juvenile offenders could not face a sentence of life without the possibility of parole for crimes other than murder. The 6-3 spread is a little deceiving as Chief Justice Roberts agreed with the result in the Graham case but did not concur with the blanket prohibition on life without parole sentence adopted by the majority. Instead, Roberts opined that the sentences should be looked at on a "case by case" basis. Here are the facts of the Graham case:

Last week the Supreme Court struck down that sentence as violative of the Eight Amendment proscription against cruel and unusual punishment. The Court opined that that a juvenile offender must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation". This ruling does not mean that the Graham and other similarly situated inmates must be paroled. It only means that they must not be forever prohibited from the opportunity to petition to be released.

Introduction:

• Please state your name and address for the record
• How far did you go in school?
• Can you read and write the English language?
• Are you presently under the influence of alcohol, illicit drugs, or prescription drugs?
• Have you ever been a patient in a mental hospital or received psychiatric care?
• Is your mind clear and do you understand what you are doing here today?

The Crime and Terms of the Plea

• It is my understanding that you are electing to plead guilty to one count of (charge)
• The elements of (charge) the state has to prove for you to be found guilty are (name elements of charge)
• In exchange for your guilty plea the terms of the plea agreement are as follows: [choose 1] a) the state has agreed to recommend_________ or the Court has bound itself to a sentence of ______________.
• By proceeding in this manner, you are waiving your right to a trial.

Waiving of Trial Rights

• You have the right to a jury trial. A jury trial consists of 12 individuals, chosen from the motor and voter rolls of (Baltimore City or County).
• Those 12 individuals will listen to the facts of your case and determine your guilt or innocence based upon a standard of beyond a reasonable doubt. That is 12-0 guilty or 12-0 not guilty. Any split in the vote is what we call a hung jury. In the event of a hung jury, the assistant state’s attorney, at his/her discretion could keep retrying your case, over and over, until there was a unanimous decision one way or the other.
• You also could waive your right to a trial by jury and have a court trial before this judge or another judge of this court. In the event of a court trial, the judge would listen to the facts of your case and determine your guilt or innocence based upon the same standard of beyond a reasonable doubt.
• Regardless of whether you chose a court trial or a jury trial, during a trial you have an absolute right to testify. You can take the witness stand-under oath-and tell the judge or the jury your side of the story.
• If you chose not to testify, in a jury trial, this judge would instruct the jury that they are absolutely prohibited from holding your silence against you. In the event of a court trial I assure you that no judge in this courthouse would ever hold your silence against you.
• By pleading guilty and waiving your right to a trial you are also waiving several more important constitutional rights, the first of which is confrontation of your accuser.
• It is my understanding that one or more would be called by the state to testify against you in this case. I as your attorney would have the absolute right to cross-examine those witnesses and ask them any legal or factually relevant questions.
• You would have the right to call any witness to the stand to testify on your behalf. If any witness was reluctant to testify, we can ask the sheriff to bring that witness to court.
• Also by pleading guilty you are waiving your right to all factual and legal defenses.
• By factual defenses I mean for example the drugs were not mine, or I was in Alaska when the crime occurred in Maryland
• By waiving all legal defenses you are giving up your right to complain, for example, that certain evidence or statements should be suppressed.

• Are you currently on parole or probation? If you are, a guilty finding in this case may violate that parole or probation. That matter is between you and the Parole Board or the Judge you are on probation to and is not under the jurisdiction of Judge____ today.

• Are you a US citizen? If not, or if you are mistaken I need to advise you that a conviction in this case could cause you to be deported.

Limited Right to Appeal
Finally, by entering into an appeal you give up an automatic right to appeal and must instead file an application for leave to appeal to the Maryland Court of Special Appeals limited to four specific and narrow areas.

1) Jurisdiction of this court:
• It is my understanding that you were 18 years of age or older
(or waived-up juvenile) at the time of your arrest and your arrest occurred in (Baltimore City)?
• That being the case you will not be successful appealing on that ground
2) Legal Sentence
• It is my understanding the maximum sentence in your case is ____. The Court has bound itself to a sentence of _______/ or is aware of the maximum sentence. Provided that your sentence does not exceed _____ you will not be successful appealing on this ground.

3) Competence of Counsel
• Are you satisfied with the representation of me and my law firm in representing you?
• (optional) Have we done everything you asked us to do?
• (optional) have we refused to do anything you asked us to do?
• In light of your answers to these questions you will not be successful appealing on this ground.

4) Voluntary Plea
• The final ground for appeal is whether you are entering into this plea freely and voluntarily.
• Has anyone threatened, forced or coerced you to plead guilty?
• Has anyone offered you any promises or inducements, other than the plea agreement, to plead guilty?

Your honor, I submit this is a knowing, intelligent and voluntary waiver of rights and the defendant is qualified to proceed.

First of all, the fact that the case was overcharged will almost invariably result in a much higher bail than would have otherwise been set had the case been properly charged as a misdemeanor. The increased bail amount will at best cost the defendant additional money to secure bail and at worst, cause the person to have to remain in jail until the case is set in for the preliminary hearing or even until the trial which could be months in the future. Also, the expungement statute precludes a person from having any count in a charging document expunged if the person is eventually convicted of any count. With criminal records so readily available these days on the Internet, having felony charges on one's record, even if they are eventually dismissed, can cause serious problems for people in a variety of areas including employment, especially in today's job market. I recently represented a person who was charged with attempted first degree murder for what was nothing more than a misdemeanor second degree assault. As in most cases, the overcharging of the case caused severe repercussions for the client. Here are the facts of the case:

My client was not aware that this individual struck his head on a bench causing a cut approximately 3 inches long on the side of his head. Because this person was extremely intoxicated (medical records showed his blood alcohol content to be over .30) he bled profusely from his wound. The Baltimore City Police responded and called an ambulance who took the man to Shock Trauma, probably because it was the closest hospital. Although the individual was released from the hospital just a few hours later with 8 or 10 stitches, the police officer charged my client with both first degree assault and attempted first degree murder.

Luckily for my client, he didn't do what most people in his situation do when he heard that there was a warrant out for his arrest which is to simply turn himself in. Instead he contacted my office and retained us which almost certainly saved him from an extended stay at the Central Booking Intake Facility. The reason for this is that with a charge this serious a Court Commissioner will order the defendant to be held without bail and many judges will refuse to lower it at the bail review. Recognizing this peril for my client, I contacted the State's Attorney's Office ahead of time and got them to review the charges. The prosecutor who reviewed the case agreed that the case was overcharged and that it was really nothing more than second degree assault. He agreed to make sure that the judge at the bail review knew that the State would not be pursuing the felony charges and agreed to affirmatively recommend a reasonable bail.

Once at the bail review it immediately became clear that it was a very good thing indeed that we contacted the State ahead of time because the judge stated on the record that "this case has no bail written all over it". Of course I think that is an outrageous position to take given my client's spotless record but it is the reaction that I feared and was guarding against by contacting the prosecutor prior to having the client turn himself in. The judge reluctantly went along with the recommendation of the State and released my client on bail which again spared him from spending a month in jail awaiting the preliminary hearing.

Once we were able to determine the identity of the alleged victim from my client's charging documents, my client's girlfriend filed sexual assault charges against the alleged victim. At the preliminary hearing all charges were dropped against both my client and his alleged victim when all parties invoked their Fifth Amendment right against self-incrimination and refused to testify. The case worked out exactly as most similar cases do but the case was made far more difficult to handle by the fact that the officer so obviously overcharged the case.

We have successfully defended a large number of these cases many of which having occurred on or around one of the numerous college campuses in the area. We recently defended an individual in just such as case and were able to have all charges against him dismissed prior to trial. This particular individual did not retain us until after he was charged which was a mistake on his part as we have successfully prevented many similarly situated individuals from ever being charged. Here are the facts of the case:

At some point late in the evening, a girl who was particularly drunk, spilled a drink all over herself. One of the residents decided she had obviously had enough at this point so he helped her change out of her clothes and put her to bed in his room. Some time later, our client determined that he was too intoxicated to drive and asked if he could spend the night at the apartment. Although it was late (actually, it was early in the morning) the party was still going on so the same guy who put the intoxicated young woman in his room, made a bed for the client on the floor.

According to our client, he woke up some time later with the naked young women sitting on top of him, kissing his neck. He tried to stop her momentarily as he knew she had a boyfriend but she told him that she had always wanted to be with him. At this point she unbuckled his pants and began to perform oral sex on him. At some point she retrieved a condom and they engaged in intercourse. Shortly thereafter someone came into the room and saw the two of them on the floor together along with a used condom and wrapper. The young woman put her head down and went back to sleep and our client was forced to leave the apartment. The police were then called and the condom was recovered.

The next morning the young woman claimed to have no recollection of the incident. The client wisely refused to be interviewed by the police but did not retain counsel at this point. The investigation proceeded for almost a year, primarily because it took that long to get the DNA results back on the condom. By now the client believed that the case was over and closed and was taken by complete surprise when he was arrested and charged with rape.

He was later indicted and only at this point did he seek out an attorney. As noted above, this was a serious mistake as we may have been able to prevent him from ever being charged in the first place as we have in many similar cases. The delay also hampered our ability to investigate the matter as some witnesses were no longer able to be located and others' memories had faded, or at least they claimed that to be the case.

The primary allegation against the client was one of third degree sexual offense under the theory that the woman, by way of voluntary intoxication, was "mentally incapacitated" or "physically helpless" and that our client "knew" or "should have known" her to be in this helpless condition. We knew right away that the client's defense would lie in his mental state given that the evidence that the young woman was intoxicated and that the two had engaged in intercourse was irrefutable. There were dozens of witnesses who had seen her in a obviously intoxicated state that evening and the two had been seen on the floor naked by two witnesses. The DNA results also confirmed the presence of both his and her DNA.

We immediately began our investigation by interviewing every witness we could find and otherwise gathering evidence that our client too was intoxicated at the time of the incident and was therefore not capable of determining that the young woman was incapacitated and therefore unable to consent to sexual activity. We also spoke to the detective as well as the prosecutor and found out that they both believed that our client had not in fact been intoxicated at the time of the incident and that is why they had chosen to proceed against him.

Ultimately, we were able to satisfy the prosecutor that our client was in fact intoxicated and that he therefore did not "know" that the young women was incapacitated and therefore unable to consent. All charges were dismissed against him and we are proceeding to expunge this entire matter from his record.

However, this case illustrates the important principal that if one is being investigated for a sexual offense or any other crime for that matter, that person should refuse to be interviewed by the police or anyone else and immediately retain counsel. This client was at least wise enough to not speak to the police. We have represented many others who would never have been charged had they not spoken to the police prior to retaining counsel. State and Federal investigators are highly trained interrogators and are quite adept at getting people to incriminate themselves often without the person even realizing that they have done so until it is too late.

Bottom Line: If you are being investigated by the police for a crime, politely refuse to speak to them and contact an experience criminal defense attorney.

The prior incident was reported to the varsity lacrosse coach, but both players involved played in the next game. It is unclear if any discipline was imposed by the coach. As the events leading up to the tragic murder unfold, it is beginning to look like University of Virginia administration and/or officials knew or should have known that Huguely was a loose cannon. He previously had several run-ins with police, threatened to kill a Virginia female police officer, and beat a fellow student and teammate in his sleep in 2009. Recognizing that hindsight is 20-20, one still wonders whether the University of Virginia fell asleep at the wheel?

Today it is being reported that Huguely has two (2) prior run-ins with the law in Florida dating back to 2007. First he was charged with possession of alcohol as a minor in Palm Beach, and then police were called to intervene in a "very heated" argument involving his father and cousin.

These incidents proceed a 2008 arrest and conviction in Lexington Virginia where he was Tasered by police while shouting "I'll kill all you bitches" to a female officer.

A lawyer needs to be very carefull about what he says in the early stages of a high-profile murder case that has peeked a communities interet or rage. I was cognizent of this in my statements to the media after the bail review in the Nicholas Browning multiple homicide case. I am surprised the Huguely defense was not tempered as well. The Huguely defense team, by calling this an "accident" has done irreputable harm to the goals of the defense, but arguably not to the ultimte goal of justice.

UNITED STATES OF AMERICA :

:

DARNELL DOE : Criminal No.:

Defendant :

...ooo0ooo...

MOTION TO SUPPRESS ELECTRONIC SURVEILLANCE EVIDENCE

Pursuant to Federal Rule of Criminal Procedure 12, the Defendant, Darnell Doe, moves this Court to suppress the electronic surveillance evidence obtained from the interception of oral communications over cellular telephone number 443-802-xxxx (A-Line), cellular number 678-263-xxxx (B-Line) and all subsequent lines, including but not limited to, cellular telephone number 443-722-xxxx(M-Line) and 443-983-xxxxx (F-Line).
A Memorandum of Points and Authorities accompanies this Motion.
Respectfully submitted,

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA :

:

DARNELL DOE : Criminal No.:

Defendant :

...ooo0ooo...

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF
MOTION TO SUPPRESS ELECTRONIC SURVEILLANCE EVIDENCE

I. INTRODUCTION

The legality of this order is challenged because the Affidavits in Support of the Application for Order Authorizing the Interception of Wire Communications (hereinafter “the Affidavit”) failed to establish that normal investigative procedures had failed or appeared unlikely to succeed if tried, in violation of 18 U.S.C. 2518(1)(c). This statutory violation is a violation of the Fourth Amendment to the United States Constitution and also constituted a lack of good faith on the part of law enforcement personnel engaged in this investigation. Electronic surveillance enables law enforcement officers to monitor and record private conversations. Due to the very clear threat to privacy rights that would obviously flow from unrestricted surveillance, Congress has mandated that certain procedures be followed before electronic surveillance commences. When the Government fails to follow the mandated procedures, courts should not hesitate to suppress the electronic surveillance evidence.
II. LEGAL PRINCIPLES
Judge Doe has provided an appropriate preface for any discussion of a criminal prosecution which relies on the use of electronic surveillance:
[F]Doe threats to liberty exist which are greater than that posed by the use of
eavesdropping devices. Consequently, in determining whether a particular
interception order comports with Title III’s ‘accomodation between [the]
competing goals of crime control and [the] protection of the right to privacy,
it is necessary to consider that in enacting Title III, the protection of privacy
was an overriding congressional concern.

United States v. Lyons, 507 F.Supp. 551, 553-554 (D.Md. 1981) (citations omitted), aff’d, 695 F.2d 8202 (4th Cir. 1982)(per curiam). The Title III mentioned in the aforequoted passage refers to that portion of the Omnibus Crime Control and Safe Streets Act of 1968 which regulates the use of electronic eavesdropping and surveillance. Title III, codified at 18 U.S.C. 2510-20, broadly prohibits the use of such surveillance, but provides in 18 U.S.C. 2515 rigid conditions under which the interception of wire and oral communications may be authorized and implemented. See 18 U.S.C. 2516-19. Mr. Doe contends that these rigid conditions were not adhered to in his case. Consequently, the privacy rights of Mr. Doe, protected by the Act and referred to in United States v. Lyons, supra, were unconstitutionally violated requiring suppression of all electronic evidence.
III. ARGUMENT
The Affidavits Failed to Set Forth Facts Showing That Normal Investigative Procedures Had Failed or Appeared Unlikely to Succeed if Tried.

On May 24, 2006, Judge John M. Doe, Circuit Court for Baltimore

City signed an Order authorizing the interception of wire communications over cellular telephone number 443-802-4684 (A-Line) subscribed to Larry Doe. Subsequently, orders were signed authorizing the interception of wire communications on Lines B through O. On June 28, 2006, the Honorable John Doe of the Circuit Court of Baltimore City signed an order to authorize the interception of 443-983-7981 (F-Line), a cell phone utilized by Mr. Doe. Additional lines the affiants allege are associated with Mr. Doe are 443-722-5338 (M-Line) and 410-372-7937 (N-Line). The Affidavit in support of A-Line is attached as Exhibit 1. The Affidavit in support of B-Line is attached as Exhibit 2. The Affidavit in support of F-Line is attached as Exhibit 3. The Affidavit in support of M-Line is attached as Exhibit 4.
Mr. Doe was a party to conversations intercepted under the surveillance orders. Accordingly, he is an “aggrieved person,” as defined in 18 U.S.C. 2510(11), and has standing to move for suppression of evidence derived from electronic surveillance. 18 U.S.C. 2518(10)(a).
Title 18, U.S.C. 2518 (1)(c) provides that each application for a wiretap authorization must include:
a full and complete statement as to whether or not other investigatory
procedures have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too dangerous.

This standard is reflected in 18 U.S.C. 2518(3)(c) which states that in issuing an order, the judge shall determine whether:
normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or too dangerous.

These “necessity” requirements are designed to ensure that “wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 425 U.S. 143, 153 n.12 (1974). Inasmuch as “necessity is a keystone of congressional regulations of electronic eavesdropping, courts examine closely challenges for noncompliance and reject applications that misstate or overstate the difficulties involved.” United States v. Lyons, supra, 507 F.Supp. at 555.
The Government carries the burden to demonstrate that traditional investigative techniques would not suffice to expose the crime. United States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995). The Fourth Circuit has cautioned that the Government cannot satisfy this burden “through a mere boilerplate recitation of the difficulties of gathering useable evidence.” Id.(quoting United States v. Leavis, 853 F.2d 215, 221 (4th Cir. 1988).
Rather, the government must base its need on real facts and must specifically
describe how, in the case at hand, it “has encountered difficulties in penetrating
[the] criminal enterprise or in gathering evidence” with normal techniques “to
the point. . .where wiretapping becomes reasonable.”

United States v. Doe, 31 F.3d 1294, 1298 (4th Cir. 1994), cert. denied, 115 S.Ct. 1170 (1995).
The Affidavits hardly describe difficulty penetrating a criminal conspiracy or problems acquiring evidence through the use of usual law enforcement techniques. Law enforcement had identified certain: (1) members of the conspiracy; (2) the addresses of the members of the conspiracy; (3) certain sources of the conspiracy and (4) stash houses of the conspiracy. However, the affiants simply failed to properly use normal investigative measures such as physical surveillance to satisfy the goals of the organization. The affiants asserted that electronic surveillance would be expected to reveal:
(i)the nature, extent and methods of operation of the narcotics trafficking activities
of the target subjects and others as yet unknown or unidentified;(ii) the identities of the

target subjects accomplices, aiders and abettors, co-conspirators and participants in their illegal activities, including the sources of supply of the controlled dangerous substances, as well as the distributors and purchasers of such controlled dangerous substances; (iii) the quantities and types of controlled dangerous substances involved in the conspiracy; (iv) the degree of participation and roles of all co-conspirators in this conspiracy; (v) the addresses and telephone numbers of all participants; (vi) all details about the manner of shipment or movement of controlled dangerous substances; (vii) methods of eluding law enforcement detection; (viii) the nature and scope of the drug activity; (ix) the locations of contraband and of items used in furtherance of those activities; (x) the location and source of resources used to finance this illegal activity; (xi) the times, dates, locations of meetings at which persons pick up drugs, exchange money and meet to discuss the progress of the organization; (xii) the existence and location of records of the operation; (xiii) the identification of communication devices or telephone instruments used by the targets; (xiv) other evidence necessary for the successful prosecution of the above described participants and others yet unknown.

(Affidavit p. 9)

In United States v. Lyons, the Court found that the presence of nine factors justified the finding that an interception order was necessary to the success of the investigation. A comparison of those nine factors to those facts presented in the Affidavit in this case demonstrates that normal investigative techniques had resulted in a prosecutable case eliminating any need for electronic surveillance.
Use of Confidential Informants
Confidential informants failed to cooperate in Lyons. In this case, CI-1 provided extensive information and even made several controlled purchases from the target of the investigation, Larry Doe. CI-1 communicated with the target of the investigation, Doe, from January 2006 to April 2006 regularly utilizing the direct connect feature on the phone that Doe was utilizing at that time. When Doe changed cell numbers, CI-1 provided the affiants with the nDoe number. CI-1 was provided this nDoe cell phone information when he/she met with Doe in Northside Bar. CI-1 advised that Doe dealt directly from that bar.

Despite this information, in the Affidavit for A-Line, the affiants state that this investigative technique has failed because the informant has not identified specific information regarding (1) Doe’ customers, (2) his stash locations, (3) his source or (4) his residence. (Affidavit A- Line p.27). An examination of the Affidavit demonstrates that is not the case. The Affidavit states that CI-1 stated that Doe “utilized the residences of friends” to store drugs. (Affidavit A- Line p.14). The Affidavit identifies Jeffrey RDoe, Julius Doe, Tony Doe, Tony Doe, James Doe, and Alesha Doe as being associates of Doe. Addresses are provided for all of these individuals. The Affidavit also states that CI-1 has “witnessed on multiple occasions drug transactions between Doe and multiple buyers. (Affidavit A- Line p.14). Therefore, it is clear that CI-1 did provide information regarding customers. CI-1 also specifically identified Lonnie as the source of cocaine and that Lonnie ran a bar known as Bre’s. (Affidavit A Line p.15). The affiants were able to identify “Lonnie” as Lionel Doe utilizing State of Maryland records. The affiants were aware of Doe’ home address and survielled that residence. It is evident that this investigative technique, the use of a confidential informant, had been utilized with favorable results. CI-1 clearly was trusted by the target of the investigation, Larry Doe.
In the Affidavit for B Line, the affiants state that while the informant has identified Doe to be a trafficker, CI-1 has been unable to impart specific information about Lionel Doe (Lonnie). However, as previously noted, the affiants had specific information regarding Doe. The affiants were aware that Doe had been arrested during August of 2005 and $26,000 had been recovered from his vehicle. Doe’s business had been identified as Bre’s Bar and Grille on Bel Air Road. Doe’s MVA photograph had been obtained by the police so clearly the affiants had an address for Lionel Doe. (Affidavit B Line p.15).

In the Affidavits for F Line and M Line, the affiants again state that CI-1 was unable to provide information regarding Doe. However, these lines were those allegedly utilized by the Defendant. Therefore, the probable cause should be geared toward the Defendant, not Lionel Doe. There is no statement by the affiants that CI-1 was requested to provide information regarding the Defendant. A reviDoe of the Affidavits also demonstrates that much more information was available to the affiants regarding Doe. Numerous calls were recorded, which the affiants interpreted as narcotics related calls, where the affiants state that Doe was discussing an outside source of supply for obtaining cocaine. (Affidavit F-Line p.19). A reviDoe of the Affidavit for M Line details many intercepted calls which the affiants interpret as narcotics related calls which detail the drug conspiracy. The affiants possessed detailed information and this technique could have been more fully utilized to further the goals of the investigation. Additionally, with regard to Lines B, F, & M, the affiants had the information from CI-1 coupled with the information from the existing wiretaps. The Government must establish separate probable cause in support of each wiretap application. The Government cannot meet this burden.
Use of Undercover Police

Undercover agents failed to meet the supplier of the Lyons conspiracy. The affiants in this case stated that CI-1 was not in the position to introduce an undercover officer. However, CI-1 had stated that Doe dealt directly from Northside Bar. There was no attempt by law enforcement to have an undercover officer attempt to make a purchase from that location. The affiants also state that use of this technique “would not satisfy the aims of this investigation in the way that the interception of narcotics related communications over A line can and will.” (Affidavit A Line p.28). This statement demonstrates that law enforcement does not comprehend that a wiretap can only be obtained if normal investigative techniques and procedures have been tried and have failed or are reasonably appear to be unlikely to succeed if tried or too dangerous. Of course electronic surveillance will likely satisfy the aims of drug investigations more easily, but due to the nature of the intrusion and the overwhelming privacy concerns, courts must examine closely challenges for noncompliance and reject applications that misstate or overstate the difficulties involved.
Physical Surveillance
The affiants state that “physical surveillance has so far failed and is unlikely to succeed in the future.” (Affidavit A Line p.31). However, the Affidavit demonstrates that law enforcement surveilled Doe make trips to his residence at 135 Baltimore Avenue in Dundalk. The affiants state that surveillance in Bre’s Bar, managed by Doe, was considered but only recognized people are allowed entry into Bre’s Bar and that Doe deals from a back room at Northside Bar. However, there is no explanation why Lionel Doe who had already been identified as Doe’ source of supply was not surveilled from Bre’s Bar and Grill where he managed. In addition, CI-1 specifically stated that Doe utilized the residences of friends to store drugs.
In the Affidavit for B Line, there is no statement explaining why physical surveillance would not be successful. Instead, the affiants detailed the physical surveillance that had taken place. On June 25 and June 26, 2006, Doe was surveilled to South Carolina. During July 6 to July 10, 2006, Doe traveled to Texas. On July 13, 2006, Doe was surveilled on Waycross Way where Doe was seen operating his Honda Accord. (Affidavit B Line p.40). Thus, it is clear that the affiants were not having difficulty surveilling Doe and this investigative technique had not failed or proven too dangerous.

In the Affidavit for F Line, the affiants state that even if surveillance would reveal more significant activity, the affiants “know from prior investigations” that “surveillance alone rarely succeeds” in gathering evidence to prosecute these types of conspiracies. (Affidavit F Line p.33). This statement demonstrates that the affiants fail to understand the meaning of properly utilizing normal investigative measures to satisfy the goals of the investigation prior to seeking a wiretap. As noted, the Government must establish probable cause in support of each wiretap application. Therefore, even if this Court were to conclude that probable cause was established for the issuance of any earlier wiretaps in this case, that does not justify the issuance of a later wiretap. Here, the affiants’ bald conclusion that physical surveillance alone in the past has not dismantled an organization does not address or meet the legal requirement that the affiant must establish that normal investigative techniques have failed, appear reasonably unlikely to succeed in this case, or too dangerous. Here, the affiants acknowledged that surveillance may reveal more significant activities. Additionally, no normal investigative technique should be expected to dismantle an organization alone, nor is that the standard required by law.

The Affidavits identify Jeffrey RDoe, address of XXXXXXXX Road; Julius Doe, address of XXXXXXXXXXAvenue; Tony Doe, address of XXXXXXXXXXStreet; Tony Doe, address of XXXXXXXXX Avenue; James Doe, address of XXXXXXX Street; and Alesha Doe, address of XXXXXXX Road. (Affidavit A Line p.22-25). Despite the fact that the affiants were aware of these associates of Doe and the addresses, no attempt was made to surveill them or these locations. The affiants even note that on March 19, 2005, Ledio Gillings was arrested leaving XXXXX Place as he was to receive a delivery of 500 grams of cocaine. An execution of a search and seizure warrant revealed Alesha Doe, a known associate of Doe, present inside. (Affidavit A Line p. 25). Further, during the last week of March 2006, Doe was followed from his residence to Bre’s Bar and Grill. After traveling to Bre’s Bar, Doe met with CI-1 at a public retail establishment where he/she purchased drugs from Doe. The police attempted to follow Doe but “other traffic interfered” so they were unable to stay in visual contact. (Affidavit A Line, p.18). In this instance, there were no counter surveillance techniques employed by Doe, the police just failed in their attempt to follow Doe. Losing Doe in traffic on one occasion is certainly not proof that physical surveillance had failed as an investigative technique or was unlikely to succeed or appeared too dangerous. Since the affiants were aware of Doe’ residence, Northside bar, his source of supply’s bar, plus many other addresses, there is no reason that more surveillance could not have been attempted. CI-1 extensively communicated with Doe. There is no reason the police could not have utilized additional meetings with CI-1 to coordinate more surveillance.
Telephone Records
The affiants note that telephone records cannot ascertain the identities of the actual parties to the call. (Affidavit A Line p.31). This general statement is contained in all the Affidavits. Again, this technique could have been more effectively utilized in combination with proper physical surveillance and informant information. No one technique can be expected to satisfy the goals of the investigation.
Grand Jury/ InterviDoes

The affiants state that the only witnesses who could provide evidence are the members of the conspiracy themselves. That is simply not the case. CI-1 stated that he/she has “witnessed on multiple occasions, drug transactions between Doe and multiple buyers.” Those individuals could have been identified and subpoenaed. The affiants also state that subpoenas would alert the targets. That blanket statement could be made in every drug investigation. This is exactly what the Fourth Circuit warned against in United States v. Leavis, 853 F.2d 215, 221 (4th Cir. 1988), when it stated that the Government cannot satisfy its exhaustion burden “through a mere boilerplate recitation of the difficulties of gathering useable evidence.” In a multitude of investigations in this courthouse, the police and the Government routinely and successfully uses grand jury testimony to bring in the suspects or those close to them to elicit testimony without stalling or jeopardizing the investigations. In this case, it is clear that the State of Maryland desired from the beginning to obtain a wiretap and therefore chose not to use this and many other techniques.
Search Warrants
In the Affidavits, the affiants make the broad generalization that since the conspiracy has not yet been fully defined, this technique would not “alone” or in league with other information satisfy the goals of the investigation. As previously stated, no one technique could be expected to satisfy the goals of a drug investigation. However, has the affiants fully utilized all the information available to them with the use of proper physical technique, the conspiracy could easily have been further defined and prosecuted.
Trash Runs

The Affidavit for A Line states that the trash from 135 Baltimore Avenue was searched twice and that the police only recovered mail addressed to Doe’ suspected girlfriend. However, there is no explanation why the trash was not searched at either Doe’s bar, Bre’s, or Northside bar where Doe vended. In addition, there were addresses noted for Jeffrey RDoe, address of 2717 Kimble Road; Julius Doe, address of 334 Whitridge Avenue; Tony Doe, address of 805 Homestead Street; Tony Doe, address of 517 Chesnut Hill Avenue; James Doe, address of 2555 Francis Street; and Alesha Doe, address of 3822 Kimble Road where Doe may have been storing drugs. No trash runs were attempted at these locations.
The Affidavit for Lines B and Line F state that Doe resides in Georgia so trash runs could not be conducted. This is simply false. The affiants conducted surveillance in Georgia so a trash run could have been conducted with the assistance of Georgia law enforcement. In addition, as previously stated, there were many other addresses mentioned during the investigation. The Affidavit for M Line states that it is the affiants’ belief that no direct evidence would be recovered from the trash at the Defendant’s residence. However, there is absolutely no explanation for this assertion. Again, as Leavis points out, the Government cannot meet its burden through mere boilerplate assertions. This technique was clearly not utilized to its fullest extent. The Government must be required to do more.
Other Reasonable Investigative Techniques Not Used or Mentioned

There are many other investigative techniques routinely used by law enforcement prior to seeking a wiretap that were not even mentioned or used in this investigation. The police never requested that CI-1 ask Doe or others about suppliers. CI-1 was clearly in a position to make such an inquiry. The police never utilized utility checks, vehicle checks, mail covers, bumper beepers, pole cameras, DNR, GPS, etc., techniques that are routinely used in other investigations prior to seeking a wiretap. It is clear that in their eagerness to use electronic surveillance, law enforcement decided to forgo these techniques and instead make blanket statements about the difficulty in infiltrating drug organizations which could be stated in every narcotics case. This kind of investigation is what occurs when the police become compliant because issuing courts routinely authorize wiretaps when requested and reviDoeing courts refuse to intervene. The police now know that little or no effort can be exerted and a wiretap will be authorized. This is demonstrated by the blanket statements made in every application. This must be stopped. This Honorable Court must do its job so that these kind of abuses will end.
CONCLUSION
The bottom line is that the police put aside very useful techniques because of their desire to use electronic surveillance. A prime example is that law enforcement monitored only one individual in the organization, Doe, despite the fact there was available information on many key players. For example, there was no surveillance on Lionel Doe, the supposed source of the cocaine. It is also telling that law enforcement did not even attempt to utilize so many techniques that are routinely employed prior to the seeking of a wiretap. The Government has failed to carry its burden that they have exhausted the normal means of investigation and needed electronic surveillance.
Respectfully submitted,

At one time, Ms. Love, a women's varsity lacrosse player, was dating a member of the men's counterpart at the University of Virginia. The relationship went south and apparently Huguely was not happy with that development. He sent what will likely turn out to be incriminating emails to Love on the evening of the murder. He was so enraged by her responses, or lack thereof, that he felt compelled to pay her a visit in the early morning hours. He kicked in her door and repeatedly bashed her head against the wall with such force that he caused lethal injury. Hugely is a reported 6'2" and 210 pounds.

While leaving the scene, Huguely took off with Love's computer-presumably to conceal the earlier email exchange. It should also be noted that Huguely never called the police. Instead, I have learned through reliable sources in the Baltimore community, Huguely knocked on the door of another fellow student around 2:00am and slept on his couch. Huguely was reported to have been drinking earlier.

Fast forward to Huguely's Tuesday morning bail review. His lawyers tactically delayed the bail review because 1) there was no chance Huguely would get a bail and 2) they did not want additional facts aired in public before the defense lawyers could try to spin the facts . As a criminal defense lawyer who has handled many high-profile cases, I can not blame them for this tactic. What I do criticize is the defense attorney's public statement that followed the waived hearing:

"Until more information becomes available, it is our hope that no conclusion will be drawn or judgment made about George or his case," the defense lawyer said. "However, we are confident that Ms. Love's death was not intended, but an accident with a tragic outcome."

By stating this was an "accident", the defense has overlooked a critical element of this case. This was at the very minimum a burglary. Huguely broke down the door and stole Love's computer. Burglary is the breaking and entering of the dwelling of another with intent to commit a felony therein. Hugely has no way around that. He admitted to the police he kicked the door down and forced entry. His DNA will be found on the hair follicles left in the hole in the door. He admitted to the police he took the computer and he even told the police where he ditched the computer. No doubt his finger prints are all over the computer as well.

Now that a burglary has been committed, even if the death of Love was an "accident" as the defense attorney wants us to believe, it was a death that occurred during the course of a burglary. Any law student knows that makes a classic case for felony murder.

A felony murder is murder in the first degree when committed during the course of a burglary. It does not matter whether the death of Love was "accidental", intended, or not intended. All that matters is that her death occurred during the course of a burglary. The law recognises any death during the course of burglary as foreseeable-whether intended or not. First degree murder in Virginia is punishable by death. I am not sure how the defense, albeit early, overlooked this. Calling this an "accident" just adds fuel to the fire. If ever there was a case that called for silence and patience by the defense for the facts to develop, this is the case. With that said, I only hope justice will be served.

A new case was decided by Judge Barbera of the Maryland Court of Appeals on April 14, 2010 dealing with Miranda. The State alleged that Mr. Luckett believed his wife was having an affair with his son's football coach. Mr. Luckett was alleged to have killed his wife and then went to the football coach's place of business, a barber shop, and killed him.

months leading up to the murders, and the murders them selves. The Circuit Court ruled that the exchange between Detective Barba and Luckett failed to convey to Luckett his right to have a lawyer present during the interrogation and granted the motion to suppress. The State appealed. The Court of Special Appeals affirmed the Circuit Court stating, “ the unnecessarily lengthy and rambling discussion about the nature of the Miranda rights not only included specifically

questionable statements of the law but utterly failed effectively to communicate the message mandated by Miranda.” The Court of Appeals agreed. The Court of Appeals held that Detective Barba did not inform Luckett that anything he said during interrogation could incriminate him. Detective Barba repeatedly advised Luckett that any of his statements that were not directly related to “the case” (whatever the detective meant by “the case”) were outside the purview of the right to counsel. The Court held that Detective Barba’s repeated “explanations” of what Miranda does and does not protect during interrogation were incorrect as a matter of law. The Court held that a suspect is not properly informed of his or her Miranda rights when a statement of those rights, however correct the statement may be, is nullified by other incorrect statements concerning those rights.

To read the opinion click on the link below.

http://mdcourts.gov/opinions/coa/2010/122a09.pdf

I have blogged about the tactics of the police in pursuing handgun cases in the past. Detectives in the firearms unit have for some time checked the criminal records of people purchasing weapons or ammunition at stores such as Dick's Sporting Goods and K-Mart to see if they are convicted felons or otherwise prohibited from owning or possession handguns. In recent weeks I have been hired by two people in cases that reveal a new tactic my the police.

The police detectives will get a subpoena for all of those forms for a given time period. They will then run the records of the people who frequented the range. The detectives are familiar enough with the law to know that this form by itself will likely not be enough evidence to convict the person of possessing a handgun even if it says that the person rented one to shoot. The detectives know that the employee will in all likelihood not remember if the patron had anyone else with him or her or be able to specifically recall seeing the person hold the handgun which would be required to prove that the person possessed it.

So the detectives have come up with a ruse. Once they have determined that a person is a prohibited person they call him on the telephone and tell the person that they are investigating an armed robbery that occurred at the shooting range the day that the person was there. They will ask if basic questions such as what time the person arrived and left the location. The detective will then nonchalantly ask what kind of weapon the person shot and whether the person bought the weapon to the range or rented it. Most people want to be helpful to the police and unsuspectingly give the police the evidence that they need to pursue the case.

While this may sound to most like a reasonable investigative tactic, the problem is that when the police cast such a wide net, many people who were really not targets of the investigation, such as convicted drug dealers or violent felons, end up getting caught up in it. Both of my clients fall into this category. One is in his mid thirties and the other in his early forties. Both had a misdemeanor assault conviction more than a decade ago that did not result in incarceration and that they had each basically forgotten about. Unfortunately for them, even a misdemeanor assault is considered a crime of violence and therefore bars that person from owning or possessing a handgun and subjects that person to a mandatory minimum penalty of five years without the possibility of parole should the State choose to pursue that count. The only thing these two clients really have working to their advantage is that the Baltimore County State's Attorney's Office does not prosecute with such a wide net. From my experience in cases such as this, the prosecutors will be able to differentiate between individuals such as my clients and the dangerous felons who are caught in this investigation and can be counted on to exercise prudent prosecutorial discretion in dealing with the former. I only wish some other State's Attorney's Offices that I deal with regularly could be counted on to do the same in similar cases.