When Traffic Stop = Seizure. Ferris v. State


Brief Brief: Ferris v. State 355 Md. 356 (1999)

Issue:  What constitutes a seizure, under the Fourth Amendment, during a traffic stop.


“The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention. (United States v. Mendenhall, 446 U.S. 544, 551, (1980)). The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment. (See United States v. Sharpe, 470 U.S. 675, 682, (1985); Berkemer v. McCarty, 468 U.S. 420, 439, (1984) (analogizing the degree of intrusiveness of the usual traffic stop to the degree of restraint imposed by the typical Terry stop)). It is equally clear, however, that ordinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. (Whren v. United States, 517 U.S. 806, 810, (1996)). Nonetheless, the Supreme Court has also made it clear that the detention of a person ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ (Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)).” (Id at 369.)

“In sum, the officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.  (citation omitted). Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. (citation omitted).” (Id. at 372.)

“Although the inquiry is a highly fact-specific one, courts have identified certain factors as probative of whether a reasonable person would have felt free to leave. (See, e.g, United States v. McCarthur, 6 F.3d 1270, 1275–76 (7 th Cir.1993); United States v. Gray, 883 F.2d 320, 322 (4 th Cir.1989)). These factors include: the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person’s documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave.” (Id. at 377.)

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

Traffic Stop for Window Tint. Turkes v. State


Brief Brief:  Turkes v. State, 199 Md. App. 96 (2011)

Issue:  When does a perceived violation of window tint regulation give rise to reasonable articulate suspension to support a traffic stop?


“When an officer observes a vehicle that is in violation of window tint regulations, the officer may stop the driver of the vehicle and, in addition to issuing a citation charging the driver with the offense, may issue to the driver a safety repair order. In Williams, the Court of Appeals summarized Maryland law requirements as to vehicle window tinting as follows (Id. at 114 citing State v. Williams, 401 Md. 676 (2007)):”

‘The amalgam of these statutes and the MVA–ASED regulation is that (1) post-manufacture tinting is permissible provided that it allows at least 35% light transmittance and other conditions set forth in the regulation, including the requirement that a label stating the percentage of light transmittance be permanently attached to the window between the glass and the tinting material, are satisfied, but (2) if a police officer observes a vehicle being driven on a highway that is not in compliance with those requirements, the officer may stop the vehicle and issue both a citation for the traffic offense and a vehicle equipment repair order.’ (Id. at 114-115 quoting Williams 401 Md. at 685).

“The Court in Williams explained that a traffic stop is justified under the Fourth Amendment if the officer has a reasonable articulable suspicion that a traffic law has been violated. In the absence of objective measurement of the tint, which may not be feasible prior to a stop, the following standard applies:” (Id. at 115 citing Williams 401 Md. at 690).

‘If an officer chooses to stop a car for a tinting violation based solely on the officer’s visual observation of the window, that observation has to be in the context of what a properly tinted window, compliant with the 35% requirement, would look like. If the officer can credibly articulate that difference, a court could find reasonable articulable suspicion, but not otherwise.’ (Id. at 115 citing Williams 401 Md. at 692).

“Further, applicable regulations require that a label or sticker be placed on a window that has post-manufacturing tinting. Thus, if an officer stops a car based solely on visual inspection, the officer could check the car for an inspection sticker to determine whether the sticker indicates that the tint is in compliance with the law. If there is no reason to believe the sticker is not genuine, there would be no reason to continue detaining the motorist. However, if there is no label, or the label appears to be not genuine, “that alone may justify a citation …, a repair order, and some further investigation.” (Id. at 115 citing Williams 401 Md. at 692 n. 3).

“In this case, Officer Smith stopped appellant on a sunny morning. Officer Smith testified that, when he saw appellant’s vehicle, he was unable to see into the vehicle at all to tell the number of occupants in the car or to distinguish movement in the car. He also did not see an inspection sticker on the tint. He testified that he had approximately 8 to 10 seconds to observe the car before initiating a stop.” (Id. at 115-116).

“Those facts justified the stop, especially in light of Officer Smith’s training and experience in recognizing legally tinted windows. Officer Smith testified that he was familiar with the appearance of a legal tint at 35% and had observed the difference between legal and non-legal tints during traffic stop training at the police academy. He also had conducted at least 100 traffic stops for tinted windows. Officer Smith noted that, based on his training and experience, if a window’s tint is legal, a person should be able to see into the window because sunlight can get through. We affirm the trial court’s finding that the stop was supported by a reasonable articulable suspicion.” (Id. at 116).

Practitioner Note:  Relevant tinting statutes:  Transportation Article Sections 22-101; 22-406; 23-104;  23-105; and 27-101.

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

Plea Agreement: Binding v. Non-Binding

MAV2BETA yellow paper plea agreement

Plea Agreement:  Binding v. Non-Binding

Defense counsel is in District Court with client charged with theft under $100.00.  Defense counsel asks the assigned State’s Attorney for a plea offer.  The State’s Attorney responds “If your client pleads guilty to theft under $100.00, I will recommend a suspended sentence.  There is no restitution in this case.”  Defense lawyer advises client.  Client wishes to accept.  Defense lawyer tells the State’s Attorney, “my client accepts.”  There is no further discussion.  A guilty plea is entered and the judge follows the recommendation.  Later, Defense counsel files for a sentence modification, seeking probation before judgment.  The State objects to the modification, claiming that the original plea offer was binding and that probation before judgment cannot be granted over his objection.  Defense counsel argues that it was a non-binding plea agreement.

So who’s right?

What is a binding plea agreement?

A binding plea agreement is one covered by Maryland Rule 4-243(a)(1)(F), which states “The defendant may enter into an agreement with the State’s Attorney for a plea of guilty … [and] that the parties will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a judge for consideration pursuant to section (c) of this Rule.”  Section (c) goes on to say: “if a plea agreement has been reached … the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the agreement … the agreement … is not binding on the court unless the judge to whom the agreement is presented approves it … if the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement.”

With a binding plea agreement, any deviation from the sentence, even on revision, must be done with the consent of both the Defendant and the State.  To do otherwise would be an illegal sentence.  (See: Chertkov v. State, 335 Md. 161 (1994); see also: Bonilla v. State, 443 Md. 1, 12 (2015)).

With a binding plea agreement, the sentence is legal only if: 1) the sentenced agreed upon by the Defense and State is followed (See Maryland Rule 4-345(a); see also, Bonilla, 443 Md. At 12); 2) a sentence more favorable to the Defendant, with the consent of the State, is granted (See State v. Smith, Md. App. No. 2634 page 2-7 (September Term, 2015) citing Chertkov 335 Md. 161 and Bonilla 443 Md. 1.); or 3) if the court gives a sentence less favorable to the Defendant, the Defendant must be advised by the court that he/she has the option to withdraw the guilty plea and have the proceedings reset in front of another judge if either the Defense or State requests it. (Maryland Rule 4-345 (c)(4) and (c)(5): “(4) Rejection of plea agreement. If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant (A) that the court is not bound by the plea agreement; (B) that the defendant may withdraw the plea; and (C) that if the defendant persists in the plea of guilty, conditional plea of guilty, or a plea of nolo contendere, the sentence or other disposition of the action may be less favorable than the plea agreement. If the defendant persists in the plea, the court may accept the plea of guilty only pursuant to Rule 4-242 (c) and the plea of nolo contendere only pursuant to Rule 4-242 (e). (5) Withdrawal of plea. If the defendant withdraws the plea and pleads not guilty, then upon the objection of the defendant or the State made at that time, the judge to whom the agreement was presented may not preside at a subsequent court trial of the defendant on any charges involved in the rejected plea agreement.”

What is a non-binding plea agreement?

A non-binding plea agreement is a plea agreement under Maryland Rule 4-243(a)(1)(E), which states “The defendant may enter into an agreement with the State’s Attorney for a plea of guilty … [and] that the State’s Attorney will recommend, not oppose, or make no comment to the court with respect to a particular sentence, disposition, or other judicial action.”

A non-binding plea agreement is one in which “the State would recommend that the judge impose the sentence suggested by the plea agreement with the perhaps illusory hope that the sentencing judge would do so.  That sort of watered down plea bargain is the one contemplated by [Maryland Rule] 4-243(b) which provides:  ‘(b) Recommendations of State’s Attorney on sentencing.  The recommendation of the State’s Attorney with respect to a particular sentence, disposition, or other judicial action made pursuant to subsection (a)(1)(E) of this Rule is not binding on the court.  The court shall advise the defendant at or before the time the State’s Attorney makes a recommendation that the court is not bound by the recommendation, that it may impose the maximum penalties provided by law for the offense to which the defendant pleads guilty, and that imposition of a penalty more severe than the one recommended by the State’s Attorney will not be grounds for withdrawal of the plea.’” (State v. Smith, Md. App. No. 2634 page 6-7 (September Term, 2015) quoting Maryland Rule 4-243(b), emphasis added by the Court of Special Appeals).

If the Defense and State disagree if a plea was binding or non-binding, how do you figure out who is right?

In Cuffley v. State, the Maryland Court of Appeals stated:

“We conclude that, by its express terms, Rule 4-243 requires strict compliance with its provisions. We further conclude, as the natural consequence of requiring strict compliance with the Rule, that any question that later arises concerning the meaning of the sentencing term of a binding plea agreement must be resolved by resort solely to the record established at the Rule 4-243 plea proceeding. The record of that proceeding must be examined to ascertain precisely what was presented to the court, in the defendant’s presence and before the court accepts the agreement, to determine what the defendant reasonably understood to be the sentence the parties negotiated and the court agreed to impose. The test for determining what the defendant reasonably understood at the time of the plea is an objective one. It depends not on what the defendant actually understood the agreement to mean, but rather, on what a reasonable lay person in the defendant’s position and unaware of the niceties of sentencing law would have understood the agreement to mean, based on the record developed at the plea proceeding.  It is for this reason that extrinsic evidence of what the defendant’s actual understanding might have been is irrelevant to the inquiry.” (Cuffley v. State, 416 Md. 568, 582 (2010)).

“If the record of the plea proceeding clearly discloses what the defendant reasonably understood to be the terms of the agreement, then the defendant is entitled to the benefit of the bargain, which, at the defendant’s option, is either specific enforcement of the agreement or withdrawal of the plea. Solorzano, 397 Md. at 667-68, 919 A.2d at 656. If examination of the record leaves ambiguous the sentence agreed upon by the parties, then the ambiguity must be resolved in the defendant’s favor. See id. at 673, 919 A.2d at 659; see also United States v. Gebbie, 294 F.3d 540, 552 (3d Cir.2002) (ambiguity in plea agreement is resolved against the government ‘[b]ecause of the Government’s advantage in bargaining power’); United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir.1990) (ambiguity in a plea agreement must be resolved against the government because a plea ‘constitutes a waiver of substantial constitutional rights requiring that the defendant be adequately warned of the consequences of the plea.’” (Id. at 583).

So what else should I know?

On May 4, 2017, the Maryland Court of Appeals heard oral argument in State of Maryland v. Stephanie Smith.  Opinion is pending.

“Issues – Criminal Law – 1) Do the holdings in Cuffley v. State, 416 Md. 568 (2010) and Baines v. State, 416 Md. 204 (2010), under which a plea agreement is construed according to what a reasonable lay person in the defendant’s position would have understood it to mean, apply when the State challenges a sentence allegedly imposed in violation of Md. Rule 4-243(c)? 2) Would a reasonable lay person in Petitioner’s situation have believed that probation before judgment was precluded by the plea agreement where the agreement was silent as to probation before judgment and required Petitioner to pay restitution? 3) Under Md. Rule 4-243(c), which provides in part that “if [the guilty plea] is accepted, [the judge] may approve the [plea] agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs,” is the court bound to the plea agreement upon accepting the guilty plea or may it reject the agreement after accepting the plea, and if the latter, did the trial court reject the agreement after accepting Petitioner’s guilty plea? 4) Did CSA err in holding that Petitioner’s sentence was imposed in violation of Rule 4-243(c)?” (http://www.courts.state.md.us/coappeals/schedule/201705schedule.html (Last Accessed 5/21/2017)).


Posted in - Criminal Law, - HG 8-505 & Sentencing, - Plea Agreements, ---- Paul Notarianni | Tagged , , , , , , , , , , , , , ,

“The Court Refuses to Honor my Appeal. What do I do now ?!?!”


Article by Paul J. Notarianni

This article is a collection of forms a practitioner could use if they feel their notice of appeal was wrongly stricken.

The Court Refuses to Honor my Appeal What do I do now

Posted in - Appellate Practice, - Criminal Law, - Notes and Forms, ---- Paul Notarianni | Tagged , , , , , , , , , , ,

Passenger Standing and Terry. Arizona v. Johnson.


Brief Brief  Arizona v. Johnson 555 U.S. 323 (2009).

Issue:  Passenger standing to challenge traffic stop and Terry search.


“This case concerns the authority of police officers to “stop and frisk” a passenger in a motor vehicle temporarily seized upon police detection of a traffic infraction.” Id. at 326.

“For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes ‘everyone in the vehicle,’ the driver and all passengers. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Accordingly, we hold that, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Id. at 327.

“Completing the picture, Brendlin held that a passenger is seized, just as the driver is, ‘from the moment [a car stopped by the police comes] to a halt on the side of the road.’ 551 U.S., at 263. A passenger therefore has standing to challenge a stop’s constitutionality. Id., at 256–259.” Id. at 322.

“After Wilson, but before Brendlin, the Court had stated, in dictum, that officers who conduct ‘routine traffic stop[s]’ may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.’ Knowles v. Iowa, 525 U.S. 113, 117–118, (1998).” Id.

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

Illegal Deferred Sentence. Montgomery v. State.


Brief Brief: Montgomery v State 405 Md 67 (2007)

Issue: Illegal Deferred Sentence

Facts:  The defendant was convicted “of violating the conditions of a previously imposed period of probation. The court sentenced Montgomery to ten years imprisonment for the violation, with no new period of probation involved. The court then deferred for three years the date when the defendant was  to report to the Division of Correction and begin serving his sentence. The reason given for the deferral, by the trial judge at sentencing, was that, “if you [Montgomery] are of good behavior between now and three years from now I will reconsider it and vacate it and not make you serve another day.” The dispositive issues before this Court are whether the deferred reporting date, based on the reasons set forth by the Circuit Court, was authorized by Maryland Rule 4–348(d)  and, if not authorized, whether the sentence amounted to an illegal sentence within the meaning of Maryland Rule 4–345(a).  We shall hold that the deferred reporting date, under the circumstances, was not authorized by Rule 4–348(d) and that it constituted an illegal sentence.” Id. at 68-69.


 the purpose of …[Maryland] Rule 4–348(d)… [is] to authorize a trial judge to defer a convicted defendant’s prison reporting date so that the defendant could “take [ ] care of” his or her “personal, financial or other commitments.” This would include such things as winding up business affairs, making arrangements for the care of children or other dependents, etc. The original placement of the new provision, in the Rule dealing with stays pending appeal, is a strong indication that the authorized deferral of the prison reporting date was not intended to be for a multi-year or indefinite period. The purpose of the provision was not to allow a trial judge to monitor the defendant’s behavior for several years.” Id. at 81.

See: Maryland Rule 4-348 (d), “Stay of Execution of Sentence; Other Sentences. Any other sentence or any order or condition of probation may be stayed upon terms the court deems proper.”

See Also:  The United States Supreme Court, as well as the Maryland Court of Appeals has held, that “having determined that a fine or restitution is an appropriate sentence, a court cannot then imprison a defendant solely because of his inability to pay it.”  (Reddick v. State, 327 Md 270 at 273-74, (1992) citing Bearden v. Georgia, 461 U.S. 660, 665 (1983)).

Posted in - Criminal Law, - HG 8-505 & Sentencing, -- B.B.'s. Brief Briefs

PBJ and Subsequent Offender Status


Below is an argument to prevent the State from seeking subsequent offender status for a defendant whose past matter resulted in a probation before judgment.   It was drafted by Paul J. Notarianni.


        The Defendant in this matter cannot be subject to enhanced penalties under Maryland Rule 4-245, as he is not a subsequent offender.   When a defendant, who receives Probation Before Judgment, successfully completes his conditions of probation, the court discharges the defendant from probation and that discharge is the final disposition of the matter. (Md Criminal Procedure Section 6-220 (g)).  A discharge of a successful  probationer under Criminal Procedure Section 6-220 is  “without judgment of conviction and is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of crime.”  (Id. at g(3)).  Maryland Rule 4-245, permits enhanced sentences for subsequent offenders in many instances.  By statute, a “subsequent offender” is defined as “a defendant who, because of a prior conviction, is subject to additional or mandatory statutory punishment for the offense charged.”  (Md Rule 4-245 (a)).  In the annotated code, the Maryland Court of Appeals is specifically cited as holding that Probation Before Judgment is “not a conviction where a defendant is satisfactorily discharged from probation because he has fulfilled the terms and conditions of his probation order.”  (Maryland Rule 4-245 Annotated, unnumbered annotation, citing Shilling v. State, 320 Md. 288, 577 A.2d 83 (1990)).  Probation Before Judgment is not a conviction.  A defendant is not a subsequent offender, simply for having a prior Probation Before Judgment.  

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