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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Supplemental Authority Letters and Other Unwritten Maryland Appellate Rules

By Steve Klepper (Twitter: @MDAppeal)

Ever since this blog launched in 2013, I’ve received fairly regular calls and emails asking about arcana of Title 8 of the Maryland Rules, governing procedure in the appellate courts. Perhaps the most frequent question is how to notify a Maryland appellate court of new on-point authorities.

In the federal appellate courts, the answer is simple. You file a Rule 28(j) letter:

Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.

Maryland Rule 8-504, our equivalent of the federal Rule 28, lacks any provision for supplemental authorities. Does that mean supplemental authorities are forbidden? Or must you move for leave? Do the supplemental authorities take the form of a letter or a supplemental brief?

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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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March 2021 Maryland Certiorari Grants

On Friday, the Court of Appeals granted review in four cases, all civil. It has assigned two cases to the current Term, meaning they will be argued this spring, and two for the next Term, meaning they will be argued this fall.

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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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Congress Considers Creating New Federal Appellate Seats, and the Usual Political Arguments Emerge.

By John Grimm

The House Judiciary Committee recently held a hearing to consider creating additional federal judgeships, including the addition of new appellate-court seats.[1] The hearing revealed bipartisan concern that rising caseloads—and the growing backlogs they produce—threaten litigants’ access to the courthouse. At the appellate level, courts have grappled with increasing workloads by giving more power to staff attorneys to manage low-profile cases. Witnesses also cited curtailed oral arguments and a proliferation of unpublished decisions as casualties of appellate court overload.

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The Singular “They” Reaches the White House, But Not the Appellate Courts

By Steve Klepper (Twitter: @MDAppeal)

Within hours of his inauguration, President Biden signed his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order began:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

Focus on the first sentence. It uses the singular “they,” instead of “he or she,” to refer to an indeterminate person. That’s no coincidence in an order addressing discrimination based on gender identity.

The phrase “he or she” rests on the erroneous assumption that everyone is either a “he” or a “she.” Non-binary individuals do not identify as men or women. The easy fix is to write in plain English and use the singular “they,” just like the White House does.

I’ve written on this issue before—urging judges to abandon “he or she” and expressly embrace the singular “they” (in the same way they endorsed the “cleaned up” parenthetical). My proposal made no headway, so far as I can tell. The phrase “he or she” continues to appear regularly in Maryland appellate opinions. In the words of Arlo Guthrie, however, “I’m not proud … or tired.”

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February 2021 Maryland Certiorari Grants

Yesterday, the Maryland Court of Appeals granted certiorari in four criminal appeals and three civil appeals. The cases, with the questions presented and links to the Court of Special Appeals opinions under review, are below.

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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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