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In-Person Appellate Oral Arguments Ended Suddenly with a Bang, and are Restarting Slowly with Anticipated Full Strength in the Fall.

By: Michael Wein

What happened in March 2020 was an abrupt departure for everyone, and a surprisingly long segue from normal.  This post provides an update.   As outlined in detail in previous posts for this Blog,  the Maryland and Federal Appellate Courts (which include Maryland), suddenly postponed Oral arguments in March 2020.  They also had the unenviable task transitioning to Remote Oral Arguments for the first time.  It’s been that way for about a year.

Assuming T.S. Eliot is a legal authority (he’s not, but fun to quote) and as a matter of transitive logic, a “bang” wouldn’t signify the end of the world…only a whimper.   Thus, there will be a resumption of normal. [1]

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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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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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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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Issues That May Be Raised For The First Time On Appeal

By Megan Coleman

Every appellate attorney is familiar with the rule that the appellate courts will not consider arguments raised for the first time on appeal. My experience doing criminal appeals informs me that I better make sure my issues were raised below, otherwise I can expect the Office of the Attorney General to begin their response brief with an argument that the issue was not preserved and therefore should not be considered on appeal. 

Where an issue was not raised below, normally the only recourse is to ask the appellate court to exercise plain error review pursuant to Maryland Rule 8-131(a). That is an uphill battle that usually results in the appellant rolling backwards a long way down.

However, there are certain issues that may properly be raised for the first time on appeal. Appellate attorneys reviewing the trial record should keep a lookout for these issues as they may be dispositive to the appeal.

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The importance of non-pattern jury instructions

By Brad McCullough

Maryland’s appellate courts strongly encourage lawyers and trial judges to rely on pattern jury instructions, observing that pattern instructions “have been put together by a group of distinguished judges and lawyers who almost amount to a ‘Who’s Who of the Maryland Bench and Bar.” Green v. State, 127 Md. App. 758, 771 (1999). Thus, “generally the pattern jury instructions suffice and trial judges usually may rely on them.” Bayne v. State, 98 Md. App. 149, 160 (1993). But lawyers should not be complacent and simply rely on pattern instructions without thinking whether other non-pattern instructions could buttress their cause. In an opinion by Judge Stuart Berger, writing for a panel that included Judge Kevin Arthur and Senior Judge Robert Zarnoch, the Court of Special Appeals reversed a judgment where the trial judge refused to give requested non-pattern jury instructions that correctly stated the law, were supported by the evidence, and were not fairly covered by instructions the court actually gave. Six Flags America, L.P. v. Gonzalez-Perdomo, Case No. 1620, Sept. Term 2019 (Dec. 16, 2020).

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