Panel Splits on Stops for “Security Checks”
By: Chris Mincher
Police officers on the lookout for crime know that people with illegal things usually try to conceal them. If the object is big and bulky enough, sometimes that isn’t so easy. People who carry illicit items under their clothes might have to take some extra measures to make sure they stay there.
On the other hand, while concealing a firearm is typically a crime, generally shoving things into one’s pants is not. As such, Maryland courts have decided that mere adjustments and manipulations of the waistline don’t create a reasonable suspicion of illegal activity without some other indication that a gun is involved. But what if the police officer describes those adjustments and manipulations as specific “security checks” consistent with a potential concealed firearm? Does that pass muster for Fourth Amendment purposes?
Read More…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…When a Woman’s Questions About Her Right to Choose Is Proof of Intent to Kill at Birth
In Akers v. State (September Term 2022, No. 0925) (unreported), Moira Akers searched the Internet for information about aborting her pregnancy. Akers’ pregnancy was in the first trimester, and she was within her rights to investigate her options to end it. She chose to continue the pregnancy. Still, her cell phone kept a digital record of her search history. Following the death of her newborn—which she maintained was stillborn during a home birth—the police seized her phone and reviewed her search history. At her trial for the first-degree murder of her infant, the prosecutor offered Akers’ search history as proof of her intent to kill the newborn infant. Akers objected, arguing that her questions about her right to lawfully terminate the pregnancy did not generate an inference of an intent to kill a newborn child at birth. In a case of first impression, the Appellate Court of Maryland (ACM) held that Akers’ Internet searches for abortion information made it more likely that she intended to kill her newborn child. The ACM cautioned that its holding “should be read narrowly, and in strict accordance with the specific facts of this case.” Still, the ACM’s decision implicates important questions about a woman’s reproductive rights in the context of a criminal case after Dobbs v. Jackson Women’s Health Organization.
Read More…Questions Remain About Self-Defense Jury Questions
There are very few dissents in the Appellate Court of Maryland: By my slapdash and amateurish count — which will have some built-in double-counting and so isn’t precisely accurate — out of 899 opinions of the court in 2023, there were only 7 dissents, meaning the panels disagree roughly 0.8 percent of the time. When one issue resurfaces in dissents twice within the same year, it’s worth taking note.
Byrd v. State, No. 1787, Sept. Term 2021 (App. Ct. Md. Jan. 23, 2023), last January contained some conflicting ink in regards to the “some evidence” standard to get a jury instruction relating to “imperfect self-defense,” an issue that was also in play recently in Hollins v. State, No. 2023, Sept. Term 2022 (App. Ct. Md. Dec. 14, 2023), albeit in regards to the alleged violent propensity of a witness. The case stems from a parking-lot fight between McDonald’s coworkers Isiah Hollins and Alexander Alvarenga that resulted in Mr. Hollins stabbing Mr. Alvarenga in the head six or seven times.
Read More…Case Update: Muldrow v. State.
On December 6, 2023, the Appellate Court of Maryland held that a trial court: 1) must voir dire the jury regarding bias against sexual orientation where it is likely to be an issue in the case; and 2) that a trial court must consider whether expert testimony is admissible under Daubert even where the testimony involves a “widely accepted” methodology. See Albert M. Muldrow, Jr. v. Maryland, _____ Md. App. ____, No. 1898, Sept. Term, 2021 (filed Dec. 6, 2023) (Getty, J.).
Read More…Denial of a Detail and Implied Fabrication under § CJP 10-923: A Matter of First Impression
In Green v. State (No. 0854, September Term 2022), the Appellate Court of Maryland (ACM) decided, as a matter of first impression, whether the defendant’s denial of just one of the elements of the offense amounts to an implied allegation of fabrication necessary for the admission of a prior sexually assaultive act under Cts. & Jud. Procs. (CJP) § 10-923. The ACM also applied the Maryland Supreme Court’s recent decision in Woodlin v. State, 484 Md. 253 (2023), to decide whether the probative value of Green’s prior sexually assaultive behavior was substantially outweighed by the danger of unfair prejudice.
Read More…October 2023 Maryland Certiorari Grants
On October 23, 2023, the Supreme Court of Maryland granted certiorari in three criminal cases. The certiorari grants, with links to the Appellate Court of Maryland opinions under review, are below.
Read More…Stillbirth or Murder, and the Evidence of Internet Searches Regarding Abortion
In Akers v. State (September Term 2022, No. 0925), the Appellate Court of Maryland will decide, among other issues, whether information about abortion, pregnancy ambivalence, and lack of prenatal care is relevant to determining how the death of an infant occurred. The question is important and novel as it implicates a woman’s reproductive rights in the context of a criminal case post–Dobbs v. Jackson Women’s Health Organization.
The facts of the case: The case arose out of Moira Akers’ unplanned pregnancy and death of her infant. Akers gave birth to an infant boy at her house. According to her, the child was stillborn. According to the State, the child was born alive and Ms. Akers suffocated her child. She was charged in the Circuit Court for Howard County with murder in the first degree, murder in the second degree, and child abuse resulting in death. Following a jury trial, Ms. Akers was convicted of second-degree murder and sentenced to 30 years imprisonment. The case is pending before the Appellate Court of Maryland.
Read More…4-3 Reversal Over Violation of Right to Counsel, both under the Sixth Amendment and Articles 21 and 24
Clark v. State (No. 25. September Term 2022, opinion by Honorable Shirley M. Watts), decided on the last day of the term, is unusual and remarkable. This 132-page, 4-3 opinion is really a 4-4-3-3 decision which includes a majority opinion by Justice Watts, joined by Justices Hotten, Biran, and Eaves, a concurring opinion by Justice Biran joined by the same Justices as the majority (Justices Watts, Hotten, and Eaves), a first dissenting opinion by Chief Justice Fader joined by Justices Gould and Booth, and a second dissenting opinion by Justice Gould, joined by Chief Justice Fader and Justice Booth. The majority opinion is remarkable because it holds that defense counsel’s failure to object to the trial court’s improper order prohibiting a testifying defendant from communicating with counsel during an overnight recess resulted in the actual denial of the Sixth Amendment right to the effective assistance of counsel and the right to counsel under Article 21 and 24 of the Maryland Declaration of Rights.
Of particular note is Justice Biran’s concurring opinion regarding the Maryland Declaration of Rights. He writes: “[t]he right to counsel is arguably the most important right enshrined in the Maryland’s Constitution. I expect that, when the Supreme Court eventually decides whether the Sixth Amendment provides the same amount of protection as Article 21 and Article 24 do in this context, it will answer in the affirmative. But if I am wrong about that, then I will be proud that Maryland provides a more robust right to counsel in this context under Article 21 and Article 24.” There is indeed a lot to be proud about in the majority and concurring opinions.
Read More…Sex Offense Trials: The Path Forward for CJP § 10-923
This summer, the Maryland Supreme Court decided Woodlin v. State, No. 22, Sept. Term, 2022 (July 26, 2023) (opinion by Eaves, J.), the first opinion interpreting Maryland’s Repeat Sexual Predator Prevention Act of 2018, Courts and Judicial Proceedings Article (“CJP”) § 10-923.
Read More…
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