As a Baltimore Maryland Criminal Attorney for almost 20 years I have long recognized that when defending people you must not let the perfect result become the enemy of the good result, particularly when dealing with serious felonies such as possession with the intent to distribute controlled dangerous substances. I watch far too many inexperienced or simply ineffective attorneys treat criminal defense as if it is a zero sum game in which every case must result in either total vindication or total devastation for the client.
The truth of the matter is that in many cases, a properly prepared defense attorney with a well analyzed and prepared defense, can negotiate a resolution that is more than satisfactory to the client without exposing her to the risks of taking the case to trial. In many cases, if the prosecutor can be convinced that there are legitimate defenses to the case that may cause her to lose her case entirely, she may reduce her plea offer to something the defendant is willing to accept or even dismiss the case altogether. I had an excellent example of just such a situation play out last week in the Circuit Court for Baltimore County. Here are the facts:
My client is a young woman in her early twenties. She came from a troubled background living most of her teen years in foster care. Predictably she got into some trouble as a juvenile and found herself both a mother and a drug addict before her twenty first birthday. She was charged with possession with the intent to distribute CDS and related offenses resulting from a traffic stop last spring. She was pulled over in what is known as a “pretext stop”. This term describes a situation in which a police officer uses a minor traffic violation as the basis to pull someone over when the actual reason for the stop is to conduct a drug investigation. Pretext stops are legal under both Maryland and Federal law.
In this particular case the officer saw my client behind the wheel of a vehicle stopped in the travel portion of the road and, according to him, impeding traffic. Once my client saw the police officer behind her she immediately drove off but he pulled her over anyway. He noted in his police report that both she and the passenger were acting very nervously and making furtive movements in the vehicle. He questioned them for a few moments and then proceeded back to his police cruiser to run a record check and to write up a citation. He specifically noted in the report that he “concluded his traffic stop procedures” and then went back to the vehicle and continued to question the women about their suspicious behavior.
Eventually he recovered a small amount of cocaine and a dozen or so narcotic painkillers for which neither woman had a prescription. The officer then reviewed text messages on my client’s phone that indicated that she was involved in distributing narcotics. She was then read her Miranda Rights and she confessed to delivering drugs for a dealer and being paid with drugs to support her own habit.
By the time she came to me she had gotten herself into a good drug program and had been clean for several months. She had a job, her own apartment and custody of her daughter. In short, her life was moving in a positive direction for the first time in a very long time. Needless to say, going to jail or ending up with a felony conviction on her record would have derailed the progress she had made and could also have resulted in her losing custody. To say she was terrified of these prospects would be a gross understatement.
On first blush, the case I described above may seem to be a slam dunk for the state but it is not. There are actually several good issues to pursue. The first issue relates to the police officer viewing the text messages on my client’s phone without her permission and without first obtaining a search warrant. In June of this year, the Supreme Court decided Riley V. California which held that the police may not search a person’s cell phone “incident to their arrest” and instead must obtain consent or a search warrant. Unfortunately for my client this case was decided after her arrest and there are serious questions as to whether this ruling applies retroactively or just prospectively.
The second issue relates to the officer’s conduct in completing the traffic stop but continuing to detain the defendant to conduct a drug investigation. In 1997 The Maryland Court of Appeals decided Ferris v. State. In that case the Court held that once the business of the traffic violation is concluded, the police officer must make a separate probable cause, or at least reasonable articulable suspicion, determination to justify the continued detention of the defendant to conduct a criminal investigation. These cases are called a “second stop” cases and they are very fact specific.
After fully preparing the case for trial, I believed that we had a fairly strong defense in this case on the second stop issue and at least had an argument with respect to the retroactive application of the holding in Riley related to the searching of cell phones incident to arrest. Having said that, I also knew that if we went to trial and lost that my client would likely end up with a felony conviction on her record and faced a maximum prison term of twenty years! Although a sentence of this length was extraordinarily unlikely, her sentencing guidelines called for a sentence of 1 to 3 years so some period of incarceration was likely if we lost at trial.
So instead of “going all in” on a trial I decided to present my defense to the prosecutor and try to use it to negotiate an acceptable outcome for my client. I explained to my client that even if he said no, we still had trial as an option so she really had nothing to lose by allowing me to explore this option. The prosecutor is someone I know to be a reasonable person, particularly where non-violent offenders are concerned. When presented with both of the defenses we had prepared as well as the difficult life circumstances my client had faced, the prosecutor agreed not only to recommend probation but to agree to probation before judgment. This means that the guilty finding will be stricken from her record and she will not have a criminal conviction as a result of this case. Needless to say, she accepted this offer without hesitation.
The bottom line is that we were able to avoid both of the potential outcomes of the case that could have ruined the client’s life – namely going to jail or ending up a permanently convicted felon – without exposing the client to the risks of a trial. Assuming she stays out of trouble, she will be able to expunge this entire incident from her record in just 3 years and legally speaking, it will be as if it never happened.