The Smell and the Fury: HB1071 and the Future of the Smell of Marijuana as Probable Cause
Last Monday was the conclusion of the 2023 General Assembly session and it was even more chaotic than usual. Minutes before midnight, House Republicans were shouting at House Speaker Adrienne Jones and attempting to leave the chamber before the House was adjourned. I will leave it to others to comment on the state of Maryland politics. What interests me is the bill that caused the last-minute ruckus.
House Bill 1071 would enact Criminal Procedure § 1-211, which prohibits a police officer from stopping or searching a person, a car, or a boat based solely on: 1) the smell of burnt or raw marijuana; 2) possession or suspicion of possession of marijuana not exceeding the “personal use” amount; 3) currency near marijuana absent other indicia of an intent to distribute; or a combination of any of these three factors. HB 1071 also provides that an officer investigating a person solely for driving under the influence of marijuana may not search an area of the vehicle that is not readily accessible to the driver or “reasonably likely to contain evidence relevant to the condition of the driver[.]” Finally, HB 1071 contains an exclusionary provision that prohibits evidence “discovered or obtained in violation of this section, including evidence discovered or obtained with consent,” from being admitted at a trial or other proceeding.
Read More…Adnan Syed’s Convictions Reinstated for the Victims’ Right to Attend in Person
The Serial continues. On March 28, 2023, the Appellate Court of Maryland reinstated Adnan Syed’s convictions and sentence to life in prison plus 30 years, because it found that the trial court violated the victim’s right to notice of, and his right to attend, the hearing on the State’s motion to vacate, in violation of Criminal Procedure § 8-301.1(d) (Lee v. State, et al, No. 1291, September Term 2022, Opinion by Hon. Kathryn Graeff).
The Appellate Court found that, although the victim’s representative, Young Lee, did attend the vacatur hearing virtually, and had no right to be heard, he had the right to receive notice sufficient to allow him to attend in person. The Court further found that the subsequent entry of a nolle prosequi did not render this appeal moot because it was a nullity.
The Lee decision is the first time that the ACM expands the Court’s control over a nolle prosequi entered by the State in favor of a victim’s rights, and to the defendant’s detriment. The dissent (Hon. Stuart Berger), disagrees with the majority in two ways. First, Judge Berger would have held that the appeal was moot, and second, that the victim’s rights to notice and to be present were not violated.
Read More…March 2023 Maryland Certiorari Grants (Part 3)
On Friday, the Supreme Court of Maryland granted certiorari in one case, which presents novel questions under the Juvenile Justice Reform Act of 2022. It is scheduled to be argued in September.
Read More…Is Evidence of Innocence Exculpatory Enough?
The Maryland Supreme Court’s last opinion of 2022, Carver v. State, 482 Md. 469 (2022) (Hotten, J.) (Gould, J., dissenting), analyzed the cumulative impact of newly discovered evidence and held that the newly discovered evidence did not “speak to” petitioner’s innocence, and therefore, did not require granting a writ of actual innocence. However, Justice Gould’s pointed dissent illustrates the existing controversy over the application of the standard for how much newly discovered evidence is enough to warrant a new trial. Both the Majority and the Dissent agreed on the standard to apply. Still, in practical terms, does a petitioner have to show that the State’s evidence of guilt is insufficient? That is precisely how Justice Gould reads the Majority’s application of the standard, which effectively raises the bar for petitioners and turns the “substantial possibility of a different outcome” test into the functional equivalent of a preponderance of the evidence standard.
Read More…Inferring Knowledge From Presumed Knowledge
“Knowledge” might seem to be a pretty basic concept: A person either knows something or doesn’t know something. But, of course, there are precious few truly basic concepts in the law, and even a question as to what a person knows can get tricky once all the presumptions and inferences start getting worked into it. One of these — the so-called “deliberate indifference” doctrine — split the judges in the recent Appellate Court case of Woodall v. State, but the case also shed light on a premise I hadn’t previously been aware of: that presumed knowledge of the law can also support a finding that a defendant was willfully ignorant about its consequences.
Read More…More March 2023 Maryland Certiorari Grants (Updated)
On March 7, 2023, the Supreme Court of Maryland granted review in an additional two cases (one criminal appeal and one civil appeal), which have been assigned for argument during the September 2023 Term. Those cases, with questions presented, are below. Also, on March 6, the Supreme Court granted review in one more case, an expedited civil appeal about whether a schoolteacher may serve on the Harford County Board of Education.
Read More…SCM to Hold Arguments Outside Annapolis Once Per Year
By Tia L. Holmes
On March 2, 2023, the Supreme Court of Maryland issued an Administrative Order declaring that the Court will sit temporarily outside of the City of Annapolis at least one day each term beginning with the September 2023 Term. In the Order, the Supreme Court designates secondary or post-secondary educational institutions within Maryland as their locations of choice. The Court will first sit at an institution located in the Fourth Appellate Judicial Circuit (Prince George’s County), which is represented by Justice Michele D. Hotten, and will rotate in numerical order of the circuits in the future terms. According to the Order, Justice Hotten will recommend an institution to host the oral arguments, and, upon approval of the full Court, the Court will sit at the recommended location.
Read More…March 2023 Maryland Certiorari Grants & Certified Questions
On March 2, 2023, the Supreme Court of Maryland granted review in four cases (three criminal appeals and one civil appeal), along with two certified questions. The Supreme Court granted review in an additional civil appeal on March 6, 2023. Those cases, with questions presented, are below.
Read More…Whren, Whren, Go Away . . .
By Tia L. Holmes[*]
Early last month, the Appellate Court of Maryland issued its unreported opinion in Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023). Snyder involved a pretextual traffic stop that the Court concluded was authorized by Whren v. United States, 517 U.S. 806 (1996). During the traffic stop, Mr. Snyder’s vehicle was searched, and the fruit of that search led to his arrest and subsequent conviction. The Court reversed Mr. Snyder’s conviction because the evidence that was used to convict him had been seized in violation of the Fourth Amendment. Concurring with the Court’s decision, Judge Dan Friedman wrote separately to express his views regarding Whren and to urge the Supreme Court of Maryland to abandon the failed federal doctrine established in Whren.
In a previous post about the Snyder opinion, Maryland Appellate Blog editor Chris Mincher left an open invitation for a discussion about Judge Friedman’s concurrence. I accepted his invitation because, in my opinion, Judge Friedman’s concurrence is the most important part of the Court’s decision.
Read More…Lessons After the First 60 Days of 2023 with the Appellate and Supreme Courts of Maryland
As most people know, in November 2022, Maryland voters approved a constitutional amendment changing the names of the appellate courts. On December 14, 2022, the switch flipped—the Court of Appeals became the Supreme Court of Maryland, and the Court of Special Appeals became the Appellate Court of Maryland. Judges of the Supreme Court of Maryland became “Justices.”
Whether you welcomed this change because it reduces confusion (“wait, so the Court of Special Appeals hears everything?”) or you were fine with the old names and saw no reason to upset the apple cart, the deed is done. Supreme Court of Maryland and Appellate Court of Maryland it is. The only question at this point is one that Steve Klepper wrote about back in December: how to refer to the appellate courts in the past tense?
When Steve wrote his post, the name change was not yet official, and the courts had offered no guidance. We thought perhaps there would be an official policy statement, or a style guide expressing preferences based upon the circumstances. To my knowledge, no such policy or statement of preferences has been issued. What we have now that we didn’t have in December, however, is opinions written by the courts under the new name regime. I have done an unofficial survey of the opinions (published and unpublished) written between December 14, 2022 and February 8, 2023. Here is what I learned:
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Maryland Appellate Blog 