Published on:

Suppression Hearings – Make Sure you have a Plan B in the Event that the Motion is Denied

Since I have been doing this Baltimore Maryland Criminal attorney/lawyer blog I have often been chided by my friends on the other side of the aisle (This is for you Joey D.) for only blogging about the cases that I win. So, in an attempt to show a little balance and humility, I will discuss a case that I lost the other day in this posting. The real reason I do this is to illustrate the point that a good criminal defense attorney always has a Plan B no matter how strong a case he believes he has. In other words, even in cases that I am confident that I will prevail, I always consider the possibility that we will lose and think about how to minimize the damage to the client if that should occur.

I had just such a case this week in Baltimore County Circuit Court. My client was charged with possession with the intent to distribute marijuana. I believed, and still believe, that I had an overwhelming case for suppression of the evidence because I believed the police had stopped my client without probable cause or even the lesser standard known as reasonable articulable suspicion, which allows police in certain circumstances to briefly detain a suspect for investigatory purposes. The facts of the case were as follows:

A Baltimore County Police Officer was driving past a shopping center containing a grocery store when he observed an Acura parked towards the back of the parking lot away from most but not all of the cars. He testified that this vehicle was occupied by one person who was in the driver’s seat and that there were roughly 5 empty spaces in between this vehicle and the next closest car. He testified that the vehicle was approximately 75 yards from the entrance of the store. In spite of the fact that it was 4:00pm and the business was open and operating, he testified that he found this situation to be suspicious.

The officer testified that he then saw my client pull into the parking lot in a Yukon Denali and pull up next to the Acura so that the cars were positioned with the driver’s doors next to one another. The officer testified that this action further piqued his suspicion as he knows through his “training, knowledge and experience”, that this behavior is “consistent” with drug distribution. The officer testified that he then pulled into the parking lot and lost sight of the vehicles for about 20 seconds as he drove behind a restaurant and then pulled up about 25 feet from the cars without blocking them in. He testified that during this brief time when the vehicles were out of his sight, the driver of the Yukon had moved into the back seat of his vehicle.

The officer testified that at this point my client climbed over the seats into the front passenger seat and exited the vehicle from that door. According to the officer, he then walked around the vehicle with his right hand clenched before stuffing that hand into his pocket and re-entering the vehicle through the driver’s door. The officer then got out of his patrol car and approached the vehicles on foot. He testified that he asked my client and the other driver what they were doing and that my client stated that they were going to the mall. He testified that the other driver said nothing. He then asked for both of their ID’s which they provided. The officer then ran a check on both individuals as well as their vehicles and found that neither subject was wanted and everything to do with their vehicles was in order.

He then advised the subjects that he had requested a K-9 unit to scan the vehicles and asked for permission to search their vehicles. My client declined him permission to search and stated that they wanted to leave and go to the mall. According to the officer the other driver said nothing. According to the officer, he was unclear when exactly the K-9 was called by his partner but according to the K-9 report he arrived 16 minutes after being called. In the judge’s decision, he/she found that they then waited at least 10 minutes and possibly 15 for the K-9 to arrive.

On cross examination, the officer agreed that the subjects were not free to leave during the 10-15 minutes that elapsed in between the time that they refused the officer permission to search and the arrival of the K-9 unit. Once the K-9 unit arrived, the dog alerted on my client’s vehicle. The officer searched the vehicle and recovered 3 pounds of marijuana. My client was arrested and charged with possession with the intent to distribute marijuana.

During argument, the State and I agreed that this case ultimately came down to whether the officer had reasonable articulable suspicion (RAS) at the point where he decided, and my client was clearly aware, that he was not free to leave. I had to concede that the 16 minute delay was not long enough to be problematic for the State if indeed the officer had RAS. I also, of course, conceded that the K-9 hit gave the officer probable cause to search if they were lawfully detained when it happened. The State basically conceded that if the Court determined that the officer did not have RAS to detain my client, that the subsequent search and seizure of the vehicle would be suppressed under the fruit of the poisonous tree doctrine.

My argument to the court was essentially that it is not enough for the officer to have a hunch or a guess that my client was engaged in illegal activity. I argued that in order to effect what is known as a “Terry Stop” he has to be able to articulate objective reasons for his suspicion. I pointed out that the officer had testified that both vehicles were legally parked in front of an open and operating business in broad daylight (as opposed to behind a closed business at night). I also pointed out that the officer had not seen anything exchange hands between the operators and that ID and registration checks on both had been negative. There was no testimony that the officer had prior knowledge of either subject being involved in criminal activity or that the location was a high crime area. neither had made furtive movements upon seeing the officers and neither had acted nervous when approached by them. They provided a reasonable explanation for their presence on the parking lot and did not consent to being detained or searched. In short, I argued that the State could not point to a single detail about the case that was objectively suspicious and that even the totality of the officer’s observations did not provide the officer with RAS to detain my client until the arrival of the K-9.

Unfortunately, the court disagreed. The judge agreed with the State that the totality of the seemingly innocent (my words) observations of the officer combined were sufficiently suspicious to a trained police officer to allow him to briefly detain my client until the K-9 arrived to scan the vehicle. I continue to believe that this decision was constitutionally incorrect and intend to appeal it but we had no choice at the time but to accept it and try to limit the damage to my client as a result.

As I noted at the beginning of this blog, a competent criminal defense attorney always plans for the worst and I did so in this case. Prior to the hearing, I advised the prosecutor that in the event my motion to suppress was denied that we would agree to proceed to trial by way of an agreed not guilty statement of facts of he would agree to submit to the court at disposition on my client’s guidelines which call for a sentence between probation and 18 months in jail. There were several advantages to securing this agreement for my client. First of all, I did not believe my client had a viable defense at trial. The 3 pounds of marijuana was found in a truck that is registered to him and that the officer saw him operating. There was no one else in the vehicle and my client had no reasonable explanation for how the drugs got in his car without his knowledge. It was my belief that it would take a jury about 5 minutes to return with a guilty verdict.

Second, I believed, and was ultimately proved correct, that if the State did not affirmatively argue for incarceration that it was unlikely that the judge that we drew would put my client in jail. Third, by proceeding to trial by way of an agreed not guilty statement of facts, instead of demanding a jury trial, I protected my client against the possibility of being transferred to a different judge who might sentence my client more harshly, particularly after a guilty verdict by a jury. Finally, by securing the agreement of the State to go forward by way of an agreed not guilty statement of facts instead of a guilty plea, I preserved my client’s right to appeal the decision made by the charge on the motion to suppress evidence.

Obviously I was unhappy with the outcome of the suppression hearing but I was relieved by the fact that I had prepared for the possibility of an adverse ruling even though I believed it unlikely, and as a result of that preparation, my client is not in jail and has the ability to appeal the judge’s decision.

Contact Information