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The Institution of the Judiciary and Judicial Review, American Democracy’s Lifeline

By Alan B. Sternstein

Until recently, the social and political institutions of the United States long enjoyed, largely, the respect and the fealty of its citizenry. Though their raison d’etre vary, our institutions our schools, houses of worship, courts, legislatures and more all serve a common and fundamental function. They facilitate the conduct of orderly and rational discourse aimed at achieving consensus of purpose, in, importantly but not exclusively, matters of education, worship, governance, and commerce. Plainly, however, institutions do not guarantee discourse having such quality and effect. That depends, instead, on the character of each institution’s members. Given their essential function and the vital purposes, how is it that our most important institutions, those of government, have fallen so far in function and repute? Certainly bearing responsibility, at the federal and even state levels, has been the Supreme Court’s insensitivity to, if not abdication of, the unique position it occupies to protect our democratic form of government, which judicial proclivity is the subject of this post. We start first, though, with some political theory.

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Divergence Between the Fourth Circuit and Maryland in Extending Arizona v. Gant to Non-Vehicular Searches Incident to a Lawful Arrest

By Megan E. Coleman

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.”

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Scent of Marijuana Alone Does Not Provide Reasonable Suspicion to Seize a Person in Maryland

By Megan E. Coleman

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.

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Modern Family Law: Who Gets the Frozen Pre-Embryos?

By Derek Stikeleather

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]

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Breached NDA renders a $20 million verdict, but only a $1 judgment

By Brad McCullough

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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Court of Appeals Clears Baltimore City Excise Tax on Clear Channel’s Billboards

By Alan B. Sternstein

In Clear Channel Outdoor, Inc. v. Dep’t of Finance, No. 9, September Term, 2020 (decided Mar. 15, 2021), the Court of Appeals recently affirmed the January 2020 decision of the Court of Special Appeals, which had ruled that Baltimore’s excise tax on billboards did not violate the First Amendment or Article 40 of the Maryland Constitution. Clear Channel Outdoor, Inc. v. Dep’t of Finance, 244 Md. App. 304, 223 A.3d 1050 (2020). An April 15, 2020 post on this Blog previously discussed the decision of the Court of Special Appeals. The decision of the Court of Appeals, though affirming the Court of Special Appeals, provides important clarification with regard to assessing the constitutionality of speech constraints effected by regulation of the means, as opposed to the content, of speech.

Specifically, in reaching its decision, the Court of Special Appeals implied that regulation which limited or burdened only the means of communication was without First Amendment significance.  As will be reviewed in this post, the April 15, 2020 post argued otherwise, in principle and discussing relevant Supreme Court precedents.  In reaching its decision, the Court of Appeals was clear that such regulation, though impacting only the noncommunicative, means of speech, also required First Amendment attention.

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Affording Strong Deference to Police Training and Experience has Fourth Amendment Implications

By Megan E. Coleman

As a practicing criminal defense attorney, it is noticeable that far too often prosecutors in stop and search cases are able to win suppression hearings based in large part on the officer’s training and experience rather than the actual substance of the observations. Prosecutors simply establish the officer’s background and then extract an opinion that in the particular case the officer believed, based on his training and experience, that what he observed was consistent with a drug transaction or a furtive movement. Add in a fact that the officer had been tailing the defendant because of a tip received by a known reliable informant and the order denying the motion to suppress gets signed, sealed, and delivered to the defendant.

This is precisely what occurred in the Fourth Circuit in United States v. Tremayne Drakeford, No. 19-4912 (decided Mar. 26, 2021) (Opinion by Thacker, J., joined by Gregory, C.J., with Wynn, J. concurring). An experienced law enforcement officer witnessed what he believed was a “hand-to-hand” drug transaction between Appellant and others, after he had been alerted by a confidential informant (CI) whom he had used approximately 50 times before, that Appellant was a suspected drug dealer. With that information officers stopped and frisked Appellant, yielding the recovery of drugs from Appellant’s sweatshirt pocket. The district court denied Appellant’s motion to suppress the drugs.

In a refreshing opinion (at least for any defense attorney), the Fourth Circuit not only reversed the district court’s denial of the motion to suppress, but the majority and concurring opinions cogently educated the police, the prosecutor, and the suppression court that the Fourth Amendment requires more than rote reliance on an officer’s training and experience.

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What is a “Daubert issue” in Maryland?

By Derek M. Stikeleather

After Maryland’s much-publicized adoption of the Daubert standard for expert testimony in its final opinion of last term, Rochkind v. Stevenson, 471 Md. 1, 38 (2020), many practitioners are left wondering, “what is a ‘Daubert issue’?” The question has greater urgency because the Rochkind opinion made Daubert immediately effective and applicable to all “cases that are pending on direct appeal [on Aug. 28, 2020] . . . where the relevant question has been preserved for appellate review.”[i]

The short, technical answer is that every expert opinion presents a “Daubert issue” because Daubert applies Rule 5-702, which applies to all expert testimony. Daubert presents no comparable dichotomy between cases that present “Frye-Reed issues” and those that do not. The salient question for practitioners is not whether Daubert applies to an opposing expert’s opinion —it does—but whether the opinion merits a formal challenge in the form of Daubert briefing and a possible hearing. The fact that Daubert now applies to all expert testimony does not mean that one should always—or even typically—file Daubert briefs. Although countless expert opinions would withstand Daubert inquiry and be admissible, it will never be true that Daubert simply does not apply to an expert opinion, as was once true for some opinions under Frye-Reed.

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Mercer v. Thomas B. Finan Center: Cuckoo’s Nest Redux?

By Alan B. Sternstein

The Court of Special Appeals reported decision in Mercer v. Thomas B. Finan Center, September Term, 2019, No. 1398 (Md. App. decided Jan. 28, 2021) (“Mercer”), addressed procedural requirements applicable in the context of the administration of antipsychotic drugs against a patient’s will. More particularly, the issue was whether an institutionalized mental health patient was denied procedural due process, when, at the start of an administrative hearing regarding the involuntary administration of antipsychotic drugs, the administrative law judge (“ALJ”) declined to conduct an on-the-record colloquy to confirm that the patient had knowingly and voluntarily waived his statutory right to counsel.

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An expert witness fails to bridge the “analytical gap.”

By Brad McCullough

The Court of Special Appeals recently decided Matthews v. State, No. 3280, Sept. Term, 2018 (Feb. 25, 2021), a case where two homicide victims were killed by shotgun blasts delivered at close range. The sole issue at trial was the identity of the shooter. Writing for a panel that included Senior Judge Paul Alpert and Judge Kathryn Graeff, Judge Douglas Nazarian observed: “The story of this case is complicated and hard to follow.” Those complications were due largely to the cast of characters who served as trial witnesses.

The case is the first reported opinion dealing with the reliability of expert testimony issued after the Court of Appeals’ decision in Rochkind v. Stevenson, 471 Md. 1 (2020). But the panel’s application of Md. Rule 5-702(3)—with its requirement that an expert witness not fall into an “analytical gap”—did not depart from pre-Rochkind jurisprudence, confirming that even before Rochkind’s adoption of the Daubert standard, Maryland courts strictly applied Rule 5-702’s mandate that expert testimony be based on a sufficient factual basis. Unlike the case as a whole, the facts regarding the “analytical gap” issue luckily are not complicated.

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