Baltimore Maryland Criminal Defense Attorneys/Lawyers are often called upon to represent defendants who are charged with manufacturing a controlled dangerous substance. Most of these cases involve the growing of Marijuana as this one did, but some involve the manufacture of methamphetamines or other drugs.
The case I had last week occurred on the West side of Baltimore County. My client, who is a 40 year old father of 3 with a college degree and various professional licenses to protect, was accused of growing 6 marijuana plants in his back yard. Unfortunately, Maryland law does not differentiate between manufacturing controlled dangerous substances for personal use and manufacturing for the purpose of distribution. Any manufacturing activity, including the growing of just one or a few marijuana plants is a felony under Maryland Law. Needless to say, the stakes were very high for the client in spite of the very small number of plants involved because a conviction would result in him having a felony on his record which would have a devastating effect on his career even if he avoided jail. Here are the facts:
My client was at work one day last November when he received a call from his neighbor informing him that there had been a burglary attempt at his home. The neighbor advised him that he has seen a man attempting to break into the back of his home. The neighbor told my client that he had chased the man away and called the police. He advised my client that the police wanted him to come home to help them with their investigation.
When he arrived home he quickly found out that the police were not at all interested in investigating the burglary (indeed I found no indication that the police did much of anything to investigate the burglary) and instead wanted to discuss the 6 marijuana plants that they said they found in my client’s back yard.
The officer advised my client of what he had found and then showed the plants to him. The plants were not planted in the ground. They were in plastic pots next to a car that was parked beside the driveway in a milk crate. My client immediately denied any knowledge of the plants and noted to the police that his back yard is not fenced and that therefore they could have been put there by anyone at any time. He then allowed the officer to search his home. The officer found no other marijuana or marijuana plants but did find what he deemed to be “grow lights” and other material consistent with a growing operation. My client had told him at the time that he had a vegetable garden and that he used the starter kits to seed tomatoes, cucumbers and other vegetables. The officer acknowledged in the report that he did in fact have a vegetable garden in his back yard.
In spite of the fact that there was no evidence found in his home to support the conclusion that the plants were his, the officer charged him with felony manufacturing of a controlled dangerous substance. He was later indicted by the grand jury and the case was set in for trial last week. After negotiations with the State and discussions with my client we opted for a court trial instead of a jury.
As a brief aside, I want to discuss why I elected a court trial for this case and also discuss the steps that I took to protect my client in the event that this decision did not work in his favor. I am always reluctant to try what I consider to be borderline frivolous cases to juries. There are several reasons for this but the primary reason is that the sentences are generally more severe in cases where a jury has found a defendant guilty. The fiction that we all operate under is that the person gets the sentence they “deserve” if they are convicted after a jury trial but we give them a break if they plead guilty or handle the matter before a judge. I anticipated that the prosecutor would also not want to try this case to a jury so I asked him if he would agree to not oppose probation before judgement if my client were to be convicted after a court trial. He agreed to do so reasoning that a 40 year old man with no record was deserving of and likely to receive probation before judgment anyway in a case like this so he wasn’t really giving anything up by agreeing to not oppose it. In my previous blog I talked about the necessity of having a Plan B and I believe that I accomplished that goal with this action because by securing this agreement I had all but assured that my client would not go to jail or end up with a permanent record even if we lost the case.
Thankfully, it turned out that we never had to go to Plan B in this case. On cross examination I elicited testimony from the police officer that not only did my client’s wife also live at this house but that the officer had done no investigation into the possibility that any other adults lived at the address. He did not charge my client’s wife even though he essentially had to admit on the stand that she was every bit as likely to be the owner of the marijuana plants as was my client. He also had to admit that for all he knew there could be half a dozen other people living at the house who could have put the marijuana there but he could not say because he did nothing to eliminate the possibility of other suspects.
At the conclusion of the evidence I made these arguments and also noted that the State had not proven how long the marijuana had been on the property and that given that it was not planted in the ground and instead was in a milk crate, that could be easily and quickly moved. The State’s attorney argued that the fact that the plants were not in the ground actually weighed in favor of the State as it eliminated the possibility of a spontaneous germination defense. He argued that the defendant owns the home and he is therefore responsible for what is on his property even in the absence of corroboration that he had knowledge that the plants were there.
The court relied on Taylor v. State, which is the seminal constructive possession case and noted that there were several cases referred to by the Court of Appeals in Taylor that had very similar fact patterns. The Judge noted that in each of those cases the Court ruled that there was insufficient evidence as a matter of law and that he therefore had no choice but to find my client not guilty.