Divergence Between the Fourth Circuit and Maryland in Extending Arizona v. Gant to Non-Vehicular Searches Incident to a Lawful Arrest
Arizona v. Gant, 556 U.S. 332 (2009) involved the search of a vehicle after the driver had been lawfully arrested, handcuffed, and locked in a patrol car. The Supreme Court rendered two holdings, the first, which is relevant for this post, held that the police may not use the search incident to a lawful arrest exception to the warrant requirement to search a vehicle incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.
Gant’s first holding was premised upon Chimel v. California, 395 U.S. 752 (1969), a non-vehicular search case in which it was determined that police may search incident to arrest only the space within an arrestee’s “immediate control”, meaning “the area from within which he might gain possession of a weapon or destructible evidence.” The Chimel holding was then applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981).
However, the Gant Court limited Belton’s reach, based upon Chimel, since the purpose of allowing a search to prevent a suspect from gaining possession of a weapon or destroying evidence would be rendered nugatory where the suspect has already been secured and cannot access the interior of the vehicle.
For the past decade, in Maryland and in the Fourth Circuit, the holding in Gant has been applied exclusively to vehicle searches.
But on May 7, 2021, in United States v. Howard Davis, the United States Court of Appeals for the Fourth Circuit joined three other federal circuits in concluding that the holding in Gant applies to searches of non-vehicular containers as well. Now, police can conduct warrantless searches of non-vehicular containers incident to a lawful arrest, but “only when the arrestee is unsecured and within reaching distance of the [container] at the time of the search.”
Read More…Scent of Marijuana Alone Does Not Provide Reasonable Suspicion to Seize a Person in Maryland
Since Maryland decriminalized possession of less than 10 grams of marijuana in 2014, Maryland’s appellate courts have been tasked with determining how this non-criminal, but non-legal substance, factors into the reasonableness of warrantless searches and seizures where evidence of marijuana is present.
On April 28, 2021, the Court of Special Appeals of Maryland decided In re: D.D., holding, as a matter of first impression, that the odor of marijuana, by itself, does not provide reasonable suspicion of criminal activity, and therefore, a stop based on this circumstance alone is unreasonable under the Fourth Amendment.
Read More…Modern Family Law: Who Gets the Frozen Pre-Embryos?
With the increasing use of cryogenic preservation in fertility treatments (and thousands of Maryland divorces every year), it was only a matter of time before Maryland’s appellate courts would need to create a framework for resolving custody disputes over frozen pre-embryos. That time arrived last month when the Court of Special Appeals handed down its reported decision in Jocelyn P. v. Joshua P., No. 2125, September Term, 2019. It is the first Maryland appellate decision to “examine how to determine the rights of parties, upon dissolution of their marriage or partnership, in a pre-embryo that they jointly created and cryopreserved.”[1]
The court adopted a hybrid test that first looks to the intent of the parties in any relevant prior agreement—focusing on their actual intent instead of boilerplate recitations in form contracts prepared by fertility-treatment centers and storage labs—before applying a multi-factor balancing test. If the parties did not have a (non-boilerplate) “express agreement, courts should seek to balance the competing interests under the following factors: (1) the intended use of the frozen pre-embryos by the party seeking to preserve them; (2) the reasonable ability of a party seeking implantation to have children through other means; (3) the parties’ original reasons for undergoing IVF, which may favor preservation over disposition; (4) the potential burden on the party seeking to avoid becoming a genetic parent; (5) either party’s bad faith and attempt to use the frozen pre-embryo as leverage in the divorce proceeding; and (6) other considerations relevant the parties’ unique situation.[2]
Read More…May 2021 Maryland Certiorari Grants
Today the Maryland Court of Appeals granted certiorari in five civil cases, one criminal case, and one juvenile case. This March, Alan Sternstein posted about the Court of Special Appeals decision in one of the civil cases, Mercer.
Read More…Breached NDA renders a $20 million verdict, but only a $1 judgment
In the last few years, we’ve heard a lot about non-disclosure agreements or “NDAs.” They are commonly used to protect against disclosure of confidential business information or financial data and similar types of highly sensitive information. Sometimes the question arises, what happens if someone breaches an NDA? In a recent Maryland case, the answer had a whipsaw-like quality, as a jury returned a $20,000,000 verdict only to see the trial judge reduce the award to $1. In an opinion written by Judge Steven Gould, and joined by fellow panelists Judge Gregory Wells and Senior Judge James Eyler, the Court of Special Appeals affirmed that drastic reduction. Adcor Indus, Inc. v. Beretta U.S.A. Corp., No. 0118, Sept. Term, 2019 (Md. Ct. Spec. App. April 1, 2021).
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