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Welcome to the Western Maryland Advocate, formerly the Maryland Advocate Version 2.0 Beta!  This site is an independent forum to present informational pieces on legal practice. Feel free to view and download any of the content on this site IF you accept the following conditions:

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Paul J. Notarianni is the administrator for the Western Maryland Advocate. He is licensed to practice law in the State of Maryland and may be contacted at Paulnotarianni@gmail.com

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Posted in ---- Paul Notarianni

K-9 Alert Not Sufficient to Search Occupants. State v. Wallace.

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Brief Brief.  State v. Wallace, 372 Md. 137 (2002).

QUOTE:  “A canine alert on the exterior of a vehicle does not support the proposition that the drugs potentially in the car are concealed on a particular occupant of that vehicle.  When the police get all of the occupants out of the vehicle and find no drugs in the vehicle, they cannot use a positive general canine scan of the car as authority to go further and search a non-owner/non-driver passenger.” Id. at 159-60.

Posted in - 4th Amendment, -- B.B.'s. Brief Briefs

Officer Cannot Stick Head in Car Window to take a Sniff. State v. Grant.

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Brief Brief: State v. Grant, 449 Md. 1 (2016).

HOLDING:  The Maryland Court of Appeals had held that a police officer, who inserts his head into a passenger side window of a defendant’s vehicle during a traffic stop, conducted a search under the Fourth Amendment, ( State v. Grant 449 Md. 1 (2016)). In Grant, the court found that the detection of odor of marihuana from the Officer sticking his head through the window, exceeded permissible scope of the stop. ( Id. )

 

Posted in - 4th Amendment, -- B.B.'s. Brief Briefs

Prosecutorial Misconduct in Plea Bargain Sentencing. Miller v. State

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Brief Brief. Miller v. State, 276 Md. 249, 1974.

Issue:  After a plea bargain has been made, a Prosecutor subverted the spirit of the agreement by making damaging statements at the time of sentencing.

Quote One:   “Prosecutor’s promise to make no recommendation as to the sentence reasonably means a ‘commitment not to make any damning or even potentially damaging statement at the time of sentencing.’”  Id. at 253 quoting  Commonwealth v. Alvarado,  442 Pa. 516, 529 (1971)).

Quote Two:  “In the instant case, the defendant’s guilty plea rested in part on the prosecution’s promise to make ‘no recommendation’ as to ‘sentencing’ or as to ‘disposition.’ The probation officer thereafter recommended that the defendant be placed on probation on the condition that he undergo therapy at a mental institution. The prosecuting attorney then stated that he was ‘not in full compliance with the recommendation of the Probation Officer.’ When the prosecuting attorney said this, he was advising or suggesting to the judge that the conditional probation recommendation not be completely accepted. This constituted a ‘recommendation’ by the prosecuting attorney as to the ‘disposition’ of the case. Moreover, the prosecuting attorney certainly appeared to be recommending that imprisonment instead of conditional probation be imposed. Absent some further explanation by the prosecuting attorney, the only logical inference that could be drawn from his statement is that he was urging imprisonment rather than probation. The prosecutor’s statement was inconsistent with his undertaking to make ‘no recommendation.’…[citations omitted]… As the Supreme Court of Pennsylvania stated in Commonwealth v. Alvarado, [442 Pa. 516, 529 (1971)] a prosecutor’s promise to make no recommendation as to the sentence reasonably means a ‘commitment not to make any damning or even potentially damaging statements at the time of sentencing.’” Id. at 253.

Quote Three: “Accordingly, where a guilty plea has been induced by the prosecutor’s agreement to make no recommendation as to sentencing, and the prosecutor violates that agreement, the defendant may at his option have the guilty plea vacated. On the other hand, if the defendant so desires, he may elect to leave the plea standing and be resentenced. As the Supreme Court stated in Santobello v. New York,  [404 U.S. 257, 263, (1971)] the resentencing should be by a different judge.” Id.

Posted in - Criminal Law, - Ethics, - Plea Agreements, -- B.B.'s. Brief Briefs

Petition to Return Seized Animal

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Petition Pursuant to Criminal Law Section 10-615: Return of Animals

Below is a redacted section from a motion to return animals when they are seized pursuant to a criminal charge.  It was drafted by Paul J. Notarianni in 2015.

NOW COMES:  The above captioned Defendant, by and through counsel, to move to have animals return to the Defendant, pursuant to Maryland Criminal Law Section 10-615 (d)(2) and offers in support:

ONE:  That the Defendant is charged in the captioned matters with violation of Criminal Law Section 10-604 (a)(5).

TWO:  That two dogs, known as Blank and Blank II, were seized by the State on or about (DATE), and that those animals remain in the custody of  the county government of (blank) County.

THREE:  That it is the Defendant’s assertion that she was never advised of her administrative options regarding the seizure of her dogs, as required by Criminal Law Section 10-615 (d).

FOUR:  Maryland Law permits for an owner of animals that have been seized in an animal cruelty case to file a petition in the District Court within ten days after their removal.  (See Criminal Law Section 10-615 (d)(2)).  

FIVE:  It is the Defendant’s assertion that her living condition is stable and it is appropriate to have the animals returned to her, or, in the alternative, to have the animals given to the custody of family or other third party friend of the Defendant, in lieu of their continued confinement at an animal shelter.  

WHEREFORE:  The Defendant requests that this Honorable Court pass an order to have the dogs known as Blank and Blank II returned to the custody of the Defendant, or in the alternative, to have Blank and Blank II placed into the custody of a family member or third party acquaintance of the Defendant.

Posted in - Criminal Law, - Notes and Forms, - Pretrial

Suppress Identification

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The following was taken from a motion to suppress identification.  The original was drafted by Paul J. Notarianni in 2015.

The Defendant offers the following argument as to suppression of the identification.   A Defendant in a criminal matter is protected by due process against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. (U.S.C.A. Const. Amend 14; Jones v. State,395 Md. 97, 107 (2006)).    The Supreme Court has recognized that improper use of  photographs by police may cause misidentifications.  (Simmons v. U.S., 390 U.S. at 383-84).  There is a two part test for inquiry of due process violations related to extra-judicial identifications.  (Jones v. State, 310 Md. 569, 577 (1987); Jones v. State 395 Md. 97, 109 (2006)).  The first is whether the identification procedure was impermissibly suggestive. (Jones v. State, 310 Md. 569, 577, 530 A.2d 743 (1987)).  If the answer is “no,” the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable. (Upshire v. State, 208 Md.App. 383 402 2012)). The Court of Special Appeals has recognized that an officer providing a single picture to a witness for identification purposes is impermissibly suggestive. (Id.)  “When the identification procedure is impermissibly suggestive, it is the prosecution’s burden to show  ‘that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing. It must do this by clear and convincing evidence that the in-court identification is based upon observations of the suspect by the witness other than the confrontation or photographic identifications.’ ” (Id. quoting Smith and Samuels v. State, 6 Md.App. 59, 68, 250 A.2d 285 (1969)). “This [C]ourt has emphasized: ‘It is only where there is a very substantial likelihood of irreparable misidentification, to wit, a situation where the identification could not be found to be reliable, that exclusion would be warranted. Short of that point, the evidence is for the jury to weigh.’ ” (Id.  quoting Turner v. State, 184 Md.App. 175, 184, 964 A.2d 695 (2009)).

Posted in - Criminal Law, - Pretrial | Tagged , , , ,

Frisking Car Passengers. Norman v. State

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Brief Brief.  Norman v. State, 452 Md. 373 (2017).

Issue:  Court of Appeals held that a police officer lacked reasonable articulate suspicion to search a car passenger, despite a strong odor of marijuana emanating from the car.

Quotes: 

Quote 1:
“Recently, in Robinson v. State, 451 Md. 94, 99, 152 A.3d 661 (2017), this Court addressed whether, in light of the decriminalization of possession of less than ten grams of marijuana, a law enforcement officer has probable cause to search a vehicle based on an odor of marijuana emanating from the vehicle. This Court unanimously held that:
a law enforcement officer has probable cause to search a vehicle where the law enforcement officer detects an odor of marijuana emanating from the vehicle, as marijuana in any amount remains contraband, notwithstanding the decriminalization of possession of less than ten grams of marijuana; and the odor of marijuana gives rise to probable cause to believe that the vehicle contains contraband or evidence of a crime.
 –
Id. This case requires us to decide a different issue involving the odor of marijuana emanating from a vehicle—namely, whether a law enforcement officer who detects an odor of marijuana emanating from a vehicle with multiple occupants has reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous, and thus may frisk—i.e., pat down—the vehicle’s occupants for weapons.” (Id. at 378).
 –
 Quote 2:
…”We reaffirm our holding in Robinson, 451 Md. at 98–99, 152 A.3d 661, that the odor of marijuana alone gives rise to probable cause to search a vehicle because the odor of marijuana indicates that the vehicle contains contraband or evidence of a crime. We hold that, where an odor of marijuana emanates from a vehicle with multiple occupants, a law enforcement officer may frisk, i.e., pat down, an occupant of the vehicle if an additional circumstance or circumstances give rise to reasonable articulable suspicion that the occupant is armed and dangerous. Stated otherwise, for a law enforcement officer to have reasonable articulable suspicion to frisk one of multiple occupants of a vehicle from which an odor of marijuana is emanating, the totality of circumstances must indicate that the occupant in question is armed and dangerous. An odor of marijuana alone emanating from a vehicle with multiple occupants does not give rise to reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous and subject to frisk.” (Id. at 379).
 Quote 3:
…”For the Fourth Amendment’s purposes, a “seizure” of a person is any nonconsensual detention. See Barnes v. State, 437 Md. 375, 390, 86 A.3d 1246, 1255 (2014). There are two types of seizures of a person: (1) an arrest, whether formal or de facto, which must be supported by probable cause; and (2) a Terry stop, which must be supported by reasonable articulable suspicion. See Barnes, 437 Md. at 390, 86 A.3d at 1255. During a Terry stop, for the sake of the safety of the law enforcement officer and others, a law enforcement officer may frisk a person who the law enforcement officer has reason to believe is armed and dangerous. See Sellman v. State, 449 Md. 526, 541–42, 144 A.3d 771, 780–81 (2016).
 –
A law enforcement officer has reasonable articulable suspicion that a person is armed and dangerous where, under the totality of the circumstances, and based on reasonable inferences from particularized facts in light of the law enforcement officer’s experience, a reasonably prudent law enforcement officer would have felt that he or she was in danger. See id. at 542, 144 A.3d at 781. Because a court considers the totality of the circumstances, the court must not parse out each individual circumstance; in other words, a court must not engage in a “divide and conquer” analysis. See id. at 543, 544, 144 A.3d at 781, 782. Indeed, a circumstance may be innocent by itself, but appear suspicious when considered in combination with other circumstances. See id. at 544, 144 A.3d at 782.
 –
Reasonable articulable suspicion is a commonsense, nontechnical concept that depends on practical aspects of day-to-day life; as such, a court must give due deference to a law enforcement officer’s experience and specialized training, which enable the law enforcement officer to make inferences that might elude a civilian. See id. at 543, 144 A.3d at 781. That said, although reasonable articulable suspicion is a lesser standard than probable cause, it must be greater than an inchoate and unparticularized suspicion or hunch. See id. at 543, 144 A.3d at 781. And, a law enforcement officer may not frisk a defendant simply because the law enforcement officer initiated a lawful traffic stop. See id. at 545, 144 A.3d at 782.” (Id. at 386-387).
Posted in - 4th Amendment, -- B.B.'s. Brief Briefs

Other Crimes Evidence and Witnesses. Sessoms v. State.

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Brief Brief. Sessoms v. State, 357 Md. 274 (2000).

Issue: The test for admitting other crimes evidence, under Maryland Rule 5-404,  does not apply to other crimes or wrongs committed by anyone other than defendant.

Quote:

“We hold that the test for admitting other crimes evidence in criminal proceedings enunciated in Faulkner generally does not apply to crimes, wrongs, or acts committed by someone other than a criminal defendant. The other crimes evidence rule is a court-created standard designed to ensure that a defendant is tried for the crime for which he or she is on trial and to prevent a conviction based on reputation or propensity to commit crimes, rather than the facts of the case. Because this rule is premised upon protecting an accused from undue prejudice, it does not apply to exclude other crimes evidence involving alleged actions by others testifying in the criminal proceedings. This is especially so when the evidence is crucial to the defense in a criminal proceeding and concerns impeachment of a witness with a possible prejudice, bias, interest, or motive to falsely testify.” (Id. at 294).

Posted in - Evidence, -- B.B.'s. Brief Briefs