As Experienced and Aggressive Criminal Attorneys we often represent people charged with Possession with the Intent to Distribute Controlled Dangerous Substances such as Cocaine, Marijuana and Prescription Drugs. In these types of cases there are typically 2 categories of defenses that can be pursued – factual and legal defensese with legal defenses being more common. A factual defense usually involve claims that the person was not in fact in possession of the substance, that the substance was not in fact the illegal substance claimed by the police or that the amount is insufficient to be for the purpose of distribution.
Legal defenses involve claims that the police violated the defendant’s Constitutional rights while investigating the crime. Usually these claims relate to illegal search and seizure but sometime involve illegally obtained confessions. These claims are often referred to as “loopholes”. I successfully defended a defendant charged with possession over 10 pounds of marijuana in the Baltimore County Circuit Court. The case involved several hearings and dragged on for well over a year before we finally prevailed and had all charges dismissed. Here are the facts:
On October 12, 2010, Detective Seabolt was conducting stationary surveillance at the Milford Mill Shopping Center. The Defendant was standing near a silver Mazda. The Defendant entered the driver’s seat. Suspect 1 exited the passenger side of a black Honda and entered the passenger side of the Mazda. Twenty seconds later, Supsect 1 exited the Mazda and re-entered the Honda. Supsect 1 then exited the Honda and re-entered the Mazda. Detective Seabolt believed a drug deal was occurring and marked patrol units pulled behind both vehicles. Officer Cohan approached the Mazda and identified the driver as the Defendant. Officer Cohan observed a blue plastic bag on the center console between Defendant and Supsect 1. Officer Cohan could see the bag contained marijuana. When asked what was in the bag, the Defendant stated, “weed.” Currency in the amount of $2214 was also removed from the Defendant. A scale was also located in the trunk of the vehicle. The Defendant was arrested. Thereafter, on October 13, 2010, detectives from Baltimore County executed a search and seizure warrant at the Defendant’s residence, 25 Caraway Road in Reisterstown, Maryland. The Affidavit in support of the search and seizure warrant details the traffic stop and the Defendant’s subsequent statement that he is renting a room in the basement of the address and there is “10 pounds of weed in a brown cardboard box underneath of a chair in the room he rents.”
Believing that the police had acted unlawfully, we immediately filed a detailed Motion to Suppress Evidence. Our theory was essentially that the police had absolutely no probable cause or even the lesser standard of reasonable articulable suspicion, to stop our client and therefore all evidence recovered from that stop must be suppressed. The subsequent search warrant was likewise illegal because the probable cause for it was based solely on information gathered as a result of the illegal arrest. This was, I argued, the proverbial “fruit of the poisnoness tree”.
In the initial suppression hearing the judge ruled in our favor on the first part, finding that the conduct of my client was “innocent” and afforded no basis for the police to stop him. She later ruled, however, that the subsequent statement of my client and the search warrant were sufficiently “attentuated” for the Constittuional violation and that the police had acted in good faith. She therefore denied the motion to suppress the 10 pounds of marijuana that was seized from his apartment as a result of the search warrant.
We didn’t give up though. Instead, I requested a postponement a filed a Motion to Reconsider Denial of Motion to Suppress. We wrote and submitted a brief and requested a hearing. The hearing occurred last week at which time the court reversed its earlier ruling and suppressed all evidence. The State dismissed all charges. Here is the brief:
STATE OF MARYLAND : IN THE CIRCUIT COURT
v. : FOR :
Defendant : Case No. 03K106907 &106909
DEFENDANT’S MOTION FOR RECOSIDERATION OF DENIAL OF MOTION TO SUPPRESS The Defendant, , through his counsel, Brian G. Thompson, and Silverman, Thompson, Slutkin & White, P.A., hereby files this Motion for Reconsideration of Denial of Motion to Suppress, and in support thereof, states:
The Defendant is charged in the above captioned matter with possession with the intent to distribute marijuana and possession of marijuana. A Motions hearing was held before this Honorable Court on the Defendant’s Motion to Suppress. The Statement of Probable Cause reflects the following, in pertinent part: On October 12, 2010, Detective Seabolt was conducting stationary surveillance at the Milford Mill Shopping Center. The Defendant was standing near a silver Mazda. The Defendant entered the driver’s seat. Supsect B exited the passenger side of a black Honda and entered the passenger side of the Mazda. Twenty seconds later, Coffield exited the Mazda and re-entered the Honda. Supsect B then exited the Honda and re-entered the Mazda. Detective Seabolt believed a drug deal was occurring and marked patrol units pulled behind both vehicles. Officer Cohan approached the Mazda and identified the driver as the Defendant. Officer Cohan observed a blue plastic bag on the center console between Gordon and Suspect B. Officer Cohan could see the bag contained marijuana. When asked what was in the bag, the Defendant stated, “weed.” Currency in the amount of $2214 was also removed from the Defendant. A scale was also located in the trunk of the vehicle. The Defendant was arrested. Thereafter, on October 13, 2010, detectives from Baltimore County exited a search and seizure warrant at the Defendant’s residence, 25 Caraway Road in Reisterstown, Maryland. The Affidavit in support of the search and seizure warrant details the traffic stop and the Defendant’s subsequent statement that he is renting a room in the basement of the address and there is “10 pounds of weed in a brown cardboard box underneath of a chair in the room he rents.”
This Honorable Court correctly held there was no reasonable articulable suspicion to support the traffic stop, stating, “if every brief meeting of two individuals in a high crime area constitutes reasonable articulable suspicion, then no citizens would be free of these warrantless intrusions, and that’s all we have here, is a very brief meeting of two individuals in a high crime area. . . I do not think that rises to a reasonable suspicion that there is criminal activity afoot.” (Transcript of the Proceedings, p.17). However, this Honorable Court applied the Leon good faith analysis to the search warrant executed in this case.
In denying the Defendant’s Motion, this Honorable Court stated, “in the Torres case, you do have the language about the parties moving out of the constitutionally violated premises… the defendant is taken to the police station. . he makes a statement. . . there is no flagrant official misconduct so the motion is denied with respect to the search warrant.” (Transcript p.30, 31). However, this Honorable Court’s reliance on Torres v. State, 95 Md.App. 126 (1995), is misplaced. In Torres, the police were investigating a murder and developed probable cause to believe that Torres and Havens were involved. The defense did not dispute that there was probable cause for the defendants’ arrests. Id. at 128. However, the police, without a warrant, entered a hotel room and arrested Torres. Torres was given his Miranda warnings at the hotel but declined to make a statement. Later at the station, Torres was again given his Miranda warnings and made a statement. Id. at 130. Torres moved to suppress that statement as fruit of the poisonous tree because the police entered the hotel room without exigent circumstances. The Court of Special Appeals did note that the parties had moved out of the constitutionally violated premises but specifically stated that the reason the confession was valid was because there was a “clean break in the chain of cause and effect.” Id. at 131. In this case, there was NO probable cause. This Honorable Court found the detention of the Defendant was not reasonable. Further, there was NO warrant applied for in the Torres case. Therefore, the Torres case is inapplicable. The warrant in this case relies soley on the information which stems from the initial unconstitutional stop and search of the Defendant’s vehicle.
Tainted information in a warrant affidavit does not vitiate an otherwise valid warrant issued upon probable cause set out in an affidavit. Holmes v. State, 368 Md. 506, 514 (2002); Klingenstein v. State, 330 Md. 402, 414 (1993); In Murray v. United States, , the Supreme Court noted: “The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case . . . if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.” Id. at 542. Maryland courts have held that the following objective test is appropriate in light of Murray: whether, after constitutionally tainted information is excised from the warrant, the remaining information is sufficient to support a finding of probable cause. Williams v. State, 372 Md. 386, 251 (2002); United States v. Shamaeizadeh, 80 F.3d 1131, 1135-36 (6th Cir. 1996). Other jurisdictions around the country also support such a test. See also; State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579, 590-92 (Ariz. 1995)(en banc); Williams v. State, 327 Ark. 213, 939 S.W.2d 264, 268 (Ark. 1997); People v. Bielawski, 255 Ill. App. 3d 635, 627 N.E.2d 710, 713-15, 194 Ill. Dec. 373 (Ill. App. Ct. 1994); State v. Seager, 571 N.W.2d 204, 212 n.5 (Iowa 1997); State v. Hills, 626 So. 2d 452, 454-55 (La. Ct. App. 1993); People v. Melotik, 221 Mich. App. 190, 561 N.W.2d 453, 458-59 (Mich. Ct. App. 1997); State v. Lieberg, 553 N.W.2d 51, 55 (Minn. Ct. App. 1996); State v. Beeken, 7 Neb. App. 438, 585 N.W.2d 865, 873-74 (Neb. Ct. App. 1998); People v. Cassadei, 165 A.D.2d 6, 565 N.Y.S.2d 286, 289-90 (N.Y. App. Div. 1991); State v. McLean, 120 N.C. App. 838, 463 S.E.2d 826, 828-29 (N.C. Ct. App. 1995); State v. Boll, 2002 SD 114, 651 N.W.2d 710, 716, 719-20 (S.D. 2002); State v. Lange, 158 Wis. 2d 609, 463 N.W.2d 390, 397 n.3 (Wis. Ct. App. 1990) After excising the tainted information, the warrant will ONLY be upheld if the remaining information establishes probable cause. Holmes at 517. The Circuit Court proceeded properly in excising the tainted information from the warrant.
In Williams v. State, supra, the Court of Appeals dealt with a warrantless entry into a hotel room and arrest, as in Torres, but that information was placed into a search warrant. The Circuit Court held that, after excising the information gleaned from the initial illegal entry, the warrant was not supported by probable cause. The Court of Appeals noted that the tainted information describing the warrantless entry and arrest of Williams is identifiable, and the Court could readily determine whether, absent that tainted paragraph, the application contained sufficient information to support a finding of probable cause. In that particular case, the affidavit for the warrant contained a sufficient factual basis to constitute probable cause apart from the information the officers learned during their illegal initial entry. Despite the initial entry, the application contained information that the police had an informant make two controlled purchases of cocaine from the co-defendant, Berry. In between the two purchases, police followed Berry’s car to the motel, where Berry entered the building through a common doorway. After the first purchase, the informant reported that Berry stated he had more cocaine for sale and that he would prefer to bring a larger amount. Following a second controlled purchase, police stopped Berry’s car and arrested him for controlled dangerous substances violations. A search of Berry’s person yielded keys to rooms 106 and 107. These factors, taken together, provide a substantial basis for a finding of probable cause. Id. at 517.
The case at bar is markedly different. The sole basis for the warrant was the initial unconstitutional stop and search of the Defendant’s vehicle. Therefore, in using the test articulated by the Court of Appeals in Williams, once the information regarding the stop and subsequent search of the Defendant’s vehicle is excised, the remaining information does not establish probable cause. Therefore, this Honorable Court should grant the Defendant’s Motion to Suppress.
For the aforegoing reasons, the Defendant respectfully requests that this Honorable Court
grant this Motion to Reconsider.
Brian G. Thompson, Esquire
Erin Murphy Ehman, Esquire
Silverman, Thompson, Slutkin & White
201 North Charles Street, 26th Floor
Baltimore, Maryland 21201