I had a CDS Possession case in which my client was alleged to have been in possession of both marijuana and cocaine this afternoon in Essex District Court in Baltimore County Maryland. As an Aggressive Maryland Criminal Attorney the first thing I look at in CDS Possession or Driving Under the Influence (DUI) or Driving While Impaired) (DWI) cases is whether or not the police officer had probable cause to stop and ultimately search my client for contraband. In a case that I recently handled in Baltimore City Maryland Circuit Court, the officer may have had probable cause to stop my client but he did not have probable cause to search my client’s person or his motor vehicle.
The officer told my client that he pulled him over for illegally dark tinting of his windows. Once my client showed him the documentation that the tinting was in fact legal (35%) he said that my client wasn’t wearing his seat belt, which according to my client was untrue. Accepting the officer’s version of the facts is unfortunately a necessary evil in evaluating the Constitutionality of a vehicle stop and/or a search because more often than not the judge is going to give more weight to the police officer’s version of the events than he or she will the defendant’s version. And it is a judge, not a jury, who decides whether or not a stop or a search is legal. The officer then called in a K-9 dog to scan the outside of the vehicle which is legal without probable cause as the court’s have consistently ruled that a person has no expectation of privacy in the outside of his or her motor vehicle.
The problem from the State’s perspective at least, was that the officer acknowledged in the statement of charges that he had completed writing and issuing the warning that he was giving my client for not wearing his seat belt prior to the arrival of the K-9 Unit but continued to detain my client. This continued detention transforms what was (at least according to the officer’s testimony) a legal stop, into a second illegal stop. Maryland Criminal Law states that once the purpose of the traffic stop is completed the officer must return the driver’s documents (license, registration and proof of insurance) and either let him leave or at least advise him that he is free to leave. If he does the latter he may continue to engage the person in dialogue and even ask him for permission to search his vehicle. Given that he has advised the person that he is free to leave, this second interaction is viewed as a “mere encounter” and is permissible. The officer in this case failed to advise my client that he was free to leave, yet continued to detain him after the purpose of the stop was completed and thus began a “second stop”. This second stop casued the initially legal stop into an illegal one and resulted in the suppression of all evidence and the acquittal of the client.