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As an Aggressive Maryland Criminal Lawyer, I have represented hundreds of defendants

As an Aggressive Maryland Criminal Lawyer, I have represented hundreds of defendants charged with Possession with the Intent to Distribute Controlled Dangerous Substances over the past 16 years. These are very serious cases, often involving complicated Fourth Amendment, illegal search and seizure issues. They are also cases that can carry lengthy mandatory sentences that must be served without the possibility of parole, particularly for repeat offenders. It is imperative that a person charged with one of these serious offenses take the time and care to ensure that they are represented by an attorney who has both the experience and the expertise to handle such a case. I strongly recommend that as in the case of being diagnosed with a serious illness, someone charged with a Felony such as Possession with the Intent to Distribute, should seek out at least two opinions from an attorney who is a specialists in both criminal law and the jurisdiction in which the person is charged.

I have blogged many times in the past about situations in which people find that they are being represented by an attorney who is not qualified to handle their case. Sometimes the individual is fortunate enough to find out before the case goes to trial. Others don’t realize the mistake until they walk out a different door than the one they came in accompanied by two armed deputy sheriff’s.

I was recently retained by an individual who figured out that he did not have the right lawyer just before his trial date. He is a repeat offender but has an extremely defensible case. Luckily for him, we were able to secure a postponement of his trial date to explore those defenses. Below is the memorandum of law we filed in support of our motion to suppress evidence based on the Fourth Amendment violations. We believe that their is a high probability that the evidence in this case will be suppressed. Even if the State prevails on those issues, the drugs in question were found in a secret compartment of a car that my client was driving but does not own so it is difficult to see how the State can prove beyond a reasonable doubt that he possessed those drugs at all, much less that he possessed them with the intent to distribute them. In spite of all of this, my client’s previous lawyer, who is not a criminal specialist, told him he should plead guilty to a mandatory 10 year prison sentence!
Here is the memorandum. I have removed the names, date and location of the offense to safeguard my client’s privacy.

The Defendant, , through his counsel, Brian G. Thompson, and Silverman, Thompson, Slutkin & White, hereby files this Memorandum in Support of Defendant’s Motion to Suppress, and in support, thereof, states:
INTRODUCTION
The Defendant is charged in a three count indictment with distribution of heroin, possession with the intent to distribute heroin and possession of heroin. The Statement of Probable Cause, reflects, in pertinent part: On ————, 2013, at approximately 6:18 pm, Officer—— was operating a marked police unit in the area of the Citgo gas station in Baltimore County. He observed a black Chrysler parked in the northwest corner of the parking lot and a white male, later identified as —–, leaning inside the rear driver’s door with the door open. Officer Campbell drove onto the lot in his marked vehicle and “pulled behind” the Chrysler. He observed that the driver, later identified as the Defendant, and the passenger, later identified as —–, were turned in their seats. When Officer ——- stopped behind the Chrysler, —– exited the vehicle and looked startled. At the same time, the Defendant and —— quickly turned around and faced forward in their seats. Officer ——- “told ——-” to remove his hands and sit on a curb. Officer ——– believed the Defendant and ——- were attempting to conceal drugs and a weapon based on furtive movements. He “directed” the subjects to keep their hands in view. The Defendant made an unsolicited statement “I have a joint on me.” Officer ———observed the occupants to attempt to lower their hands so he drew his service weapons until additional units arrived. A subsequent search of the Defendant revealed marijuana and a search of the vehicle revealed heroin. As the Defendant was illegally seized, any and all evidence seized as a result of the search must be suppressed.
ARGUMENT
The illegal seizure of the Defendant was violative of the Fourth Amendment.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures and is applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 642 (1961); See also Maryland Const., Declaration of Rights, Art. 26. The linchpin of the Fourth Amendment is reasonableness. An automobile stop is “subject the constitutional imperative” of reasonableness. Whren v. United States, 517 U.S. 806 (1996).
It is well-established that the Fourth Amendment guarantees are not implicated in every situation where the police have contact with an individual. California v. Hodari D, 499 U.S. 621, 625-26 (1991); Scott v. State, 366 Md. 121, 133 (2001). Although there is no litmus paper test for distinguishing a consensual encounter that does not violate the Fourth Amendment from a seizure, the Supreme Court has noted that “Fourth Amendment protections are implicated when an officer, by either physical force or a show of authority, has restrained a person’s liberty so that a reasonable person would not feel free to terminate the encounter of to decline the officer’s request.” United States v. Mendenhall, 446 U.S. 544, 553 (1988).
As the Supreme Court observed in Terry v. Ohio, 392 U.S. 1 (1968), “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen, we conclude that a seizure has occurred.” Id. at 19. In determining whether a person has been seized, “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437 (1991).
In Michigan v. Chesnut, 486 U.S. 567 (1988), the Supreme Court identified examples of police conduct that would communicate to a person that he would not feel free to leave, including the activation of sirens or flashers, commanding a citizen to halt, display of weapons and operation of a car in an aggressive manner to block a defendant’s course or otherwise control the direction or speed of the defendant’s movement. Id. at 575.
In Swift v. State, 393 Md. 139 (2006), the Court of Appeals discussed a seizure under analogous circumstances. In that case, the defendant was walking alone on a public street at 3:13am when a marked police car that he had seen circling the block pulled up in front of him and blocked his path. The officer got out of his car, and asked to speak with him. Id. at 154. The defendant argued that no reasonable person, under those circumstances, would have felt free to leave. The Court cited approvingly Judge Meredith’s dissent in the Court of Special Appeals, who stated:
The implied requirement that Swift was to wait for the results of the warrant check adds weight to the other circumstances suggesting that Swift was not fee to go about his business: Swift was accosted at 3:00 in the morning on an otherwise deserted street by a police officer who had blocked Swift’s path with his police car and whose request for a search was made under circumstances that would have made it difficult for any person to say no.

Id. at 156. The Court of Appeals agreed, noting, “although petitioner was not restrained physically when Deputy Dykes asked for his identification, once petitioner complied with this request and Deputy Dykes then ran the warrants check, a reasonable person would not have felt free to leave.” Id. at 156. The Court further noted that Deputy Dykes never told the defendant he was free to leave. Id. For those reasons, the Court of Appeals determined that Swift was seized and there was no reasonable articulable suspicion to support his seizure. Id.
Lawson v. State, 120 Md.App. 610 (1997) is also instructive. In that case, a police officer saw the defendant sitting in a parked car outside of an apartment complex that was in a high drug activity location. The officer pulled in behind the defendant’s vehicle and as he did so, the defendant backed up. Id. at 613. The officer then activated his emergency lights and ordered the defendant to step out of the car. The defendant was subsequently arrested for driving under the influence. Id. at 614. The defendant moved to suppress the evidence because of the officer’s illegal stop. The Court of Special Appeals concluded that the officer’s actions communicated to a reasonable person that there was an intent to intrude upon the defendant’s freedom of movement. Id. at 620.
The same result should be reached in this case. There can be no question that a seizure occurred. The Defendant and his companions were lawfully parked on the lot of an open and operating gas station at 6:13PM. Officer——, having witnessed no suspicious activity, pulls onto the lot and positioned his marked police cruiser behind the Defendant’s vehicle, blocking his only means of egress. The officer then ordered Mr. —– to sit on the curb and “directed” the defendant and the passenger Mr. —– to keep their hands “visible”. No reasonable person in Defendant’s position would have believed that he was “at liberty to ignore the police presence and go about his business”. Botsick at 437. Indeed, by Officer ——‘s own admission as soon as the Defendant and Mr. —– began to simply lower their hands, he drew his weapon and held them at gunpoint until backup officers arrived.
It is also clear that there was no reasonable articulable suspicion to support the seizure. In Terry v. Ohio, the Supreme Court ruled that police officers may stop persons when they have “specific and articulable facts which, taken together with rationale inferences from those facts, creates reasonable suspicion that the person has been or is about to engage in criminal activity. Id. at 21. It is well-settled that the police officer making the Terry stop must be able to articulate something more than a “hunch” to justify such a stop. Alabama v. White, 496 U.S. 325 (1990).
There are ZERO facts in this case to support an inference that the Defendant was
engaging or was about to engage in criminal activity. As noted above, the Defendant was parked in the lot of an open business at 6:18pm and the Officer did not witness any suspicious activity prior to pulling his vehicle on the lot. The fact that the three individuals were engaging in conversation as the officer blocked the Defendant’s vehicle is not indicative of drug activity. The officer saw no objects exchanged. Further, the observations that the three looked “nervous” or engaged in unspecified “furtive” movements, does not support any inference of criminal activity.
A myriad of cases, some of which are cited below, stand for the proposition that nervousness when defendants are stopped by the police is indicative of nothing. In Snow, 84 Md.App. 243 (1990) the Court of Special Appeals emphasized that “[m]ost citizens are nervous when they receive a citation from a law enforcement agent. Further, nervousness is a highly subjective observation.” Id. at 260. In Whitehead, 116 Md.App. 497 (1992), the Court took even a stronger stance on discounting nervousness, stressing,
The nervousness, or lack of it, of the driver pulled over by a Maryland State trooper is not sufficient to form the basis of police suspicion that the driver is engaged in the illegal transportation of drugs. There is no earthly way that a police officer can distinguish the nervousness of an ordinary citizen under such circumstances from the nervousness of a criminal who traffics in narcotics. An individual’s physiological reaction to a proposed intrusion into his or her privacy cannot establish probable cause or even grounds to suspect. Permitting a
citizen’s nervousness to be the basis for a finding of probable cause would confer upon the police a degree of discretion not
grounded in police expertise, and, moreover, would be totally insusceptible to judicial review.
Id. at 505.
In Ferris, 355 Md. 356 (1999), the Court of Appeals cited with approval to several federal cases that cast a jaundiced eye on “nervousness.” For example, in United States v. Hall, 978 F.2d 616, 621 n. 4 (10th Cir. 1992), the Court acknowledged its wariness of claims of nervousness, even while “recognizing that reasonable suspicion may be the sum of noncriminal acts and is based on the totality of the circumstances.” See also, United States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir. 1992); both the innocent and guilty may frequently react with similar trepidation when approached by police. Therefore, “[t]his repetitive assertion by the Government in all cases of this kind must be treated with caution.”
As the Defendant was seized when the officer blocked his vehicle and ordered him to
keep his hands visible, and there was no reasonable articulable suspicion to support this seizure, any and all evidence seized as a result of the illegal seizure must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-86 (1963).

CONCLUSION
For the aforegoing reasons, the Defendant respectfully requests that this Honorable Court grant this Motion to Suppress.
Respectfully submitted,

____________________________________
Brian G. Thompson, Esquire
Silverman, Thompson, Slutkin & White
201 N. Charles Street, 26th Floor
Baltimore, Maryland 21201
(410) 385-2225

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this_______ day of ___________, 2014, a copy of this

Motion was mailed, postage pre-paid to Assistant State’s Attorney for Baltimore County

Fran Pilarski, County Courthouse, 5th Floor, 401 Bosley Avenue, Towson, Maryland,

21204.

____________________________________

Brian G. Thompson