Whren, Whren, Go Away…: Could the Days of the “Pretextual Traffic Stop” Be Numbered?
By Tia L. Holmes[*]
The “pretextual traffic stop”[1] issue appears to be on the minds of more and more lawyers and judges these days. The issue stems from a policing practice that was approved by the United States Supreme Court in Whren v. United States, 517 U.S. 806 (1996).[2] For decades, critics have expressed concern that Whren distorted or largely ignored the Fourth Amendment jurisprudence that preceded it, gutted Fourth Amendment protections for drivers and passengers, and authorized racial profiling[3] on America’s roadways.[4] These days, it is common to find briefs, scholarly works, and dissenting opinions decrying the policing practice. Even during an oral argument, it is difficult to avoid a discussion about pretextual traffic stops when the circumstances of a traffic stop are at issue.
Last year, I authored a post discussing Judge Dan Friedman’s concurrence in Snyder v. State, 2023 WL 1497289 (Feb. 3, 2023), in which he expressed his view that “Whren was wrong when it was decided in 1996 and remains both wrong and dangerous today.” My dedication to this issue has revealed that Judge Friedman is not alone. He joins dissenting judges throughout the country who also are concerned about Whren’s ongoing effects.[5] But judges have not only dissented. At least two states have declared pretextual traffic stops unconstitutional and departed from Whren on state constitutional grounds.[6] So, what does this mean for Maryland?
Read More…After Six Months of Being Civil
In January, after 16 years with the Maryland Attorney General’s Criminal Appeals Division, I joined the appellate practice at Goodell, DeVries. After six months, I am reflecting on the biggest differences between civil and criminal practice.
The biggest shock for me has been the relative dearth of civil case law. In my first month at Goodell, I vainly searched for cases on nuanced points of civil litigation, terrified that my legal research skills had suddenly abandoned me. Eventually, I realized that searching was not the problem. The cases I wanted just don’t exist.
Read More…Zadeh v. State: Timeliness, Motion to Suppress, and Voluntariness
In Zadeh v. State (No. 11, Sept. Term 2022, Opinion by Hon. Andrea M. Leahy), the Appellate Court of Maryland (ACM) remanded the case – yet again – because the trial court failed to instruct the jury on the voluntariness of Zadeh’s statement to police. Before reaching the merits, the ACM addressed the important question of the time requirement for filing motions to suppress on remand.
Brief Summary of Facts and First Reversal: On August 4, 2014, Takoma Park Police responded to a call reporting that a woman, Larlane Pannell-Brown, was screaming at her house. When the police arrived, they found her husband, face down, bleeding from trauma to his head. However, police were unconvinced by Ms. Pannell-Brown’s screams once they discovered that she was having an affair with Hussain Ali Zadeh, a man 20 years her junior. In the first trial, Zadeh was jointly tried with Pannell-Brown, and both were convicted of second-degree murder and sentenced to 30 years in prison. However, the Supreme Court of Maryland reversed Zadeh’s conviction because he was unfairly prejudiced by non-mutually admissible evidence at the joint trial. State v. Zadeh, 468 Md. 124, 163-64 (2020).
Read More…Abruquah v. State debates abuse of discretion under Rule 5-702.
The Supreme Court of Maryland’s recent 4-3 decision in Abruquah v. State takes a strict view of the admissibility of firearms identification testimony under Rule 5-702. (Sept. 2022 Term, Case No. 10) (decided June 20, 2023). The decision raises complex questions about whether defendants can retroactively challenge criminal convictions that were supported by such testimony. But I will leave that issue to others. Here, I want to focus on the Justices’ vigorous debate over the abuse-of-discretion standard under Rule 5-702.
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…Seventeen Days to Go and Two Potential Blockbuster Maryland Court of Appeals Cases Left to Decide!
By Michael Wein
It’s time for the Annual* “Blockbuster” Court of Appeals decision watch. Three years ago, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline of August 31st for deciding all cases in the term, the Court had only four cases left to decide. Two years ago, with two weeks before the Court’s deadline, there were 11 decisions left undecided. With a little more than two weeks to go before this year’s deadline, nine (9) decisions remain undecided, per the “Pending Cases” page on the Court of Appeals’ web site, with four (4) of those cases related to the topic of juvenile life sentences (that will likely involve some form of consolidated opinion, or opinions that will cross-reference each other). Of these 9 cases, one is civil, five are criminal, and three involve an Attorney Grievance matter. A listing of these cases’ Questions Presented from the Court of Appeals’ website, can be found at the bottom of this post.
COSA Dissent Watch: Battered-Spouse Syndrome and Murder-For-Hire
The case: Porter v. State, Sept. Term 2013, No. 1916 (Oct. 25, 2016)
The questions: Does Md. Code, Cts. & Jud. Proc. (“CJP”) § 10-916 permit a defendant implicated in a murder-for-hire scheme to introduce evidence of battered-spouse syndrome? Did the evidence in the case establish that the defendant had a subjective belief of an apparent imminent or immediate danger of death or serious bodily harm?
COSA Dissent Watch: Circumstantial evidence of lead paint in the post-Rowhouses world
The case: Murphy v. Ellison, Sept. Term 2015, No. 0822 (Aug. 23, 2016) (unreported)
The questions: Can a plaintiff in a lead-paint case establish a property as a reasonably probable source of exposure without expert testimony or inspections of the property? Can the age of a house or its components establish that the property probably had lead paint? Can evidence of lead paint on the exterior of a home be evidence of lead paint on the interior?
COSA Dissent Watch: Marijuana Odors and Pat-Downs
The case: Norman v. State, Sept. Term 2015, No. 1408 (Aug. 11, 2016)
The questions: Was the odor of marijuana effectively the only justification for a police officer’s alleged belief that a passenger in a vehicle was armed and dangerous? If so, is that belief reasonable for the purposes of the Fourth Amendment?
COSA Dissent Watch: Plea Bargains That Ignore Mandatory Probation
The case: Crawley v. State, Sept. Term 2013, No. 0467 (Aug. 8, 2016)
The questions: If a plea agreement would be invalid without the inclusion of probation, is probation an implied term of the agreement? If a plea agreement is invalid because it provides for an illegal sentence, can a trial court, sua sponte, increase the sentence to make it legal? If a plea agreement is invalid for failure to include probation, is a defendant’s renegotiation of the plea limited to the addition of probation, or can he renegotiate the entire agreement?
Maryland Appellate Blog 