Criminal Defense Lawyer Blog
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image-6-201x300Anne Arundel County Police recently arrested a 24-year-old Glen Burnie man for felony assault after he and another suspect attempted to rob an individual on Furnace Branch Road.  According to reports the victim was approached shortly after 7 p.m. by two individuals, one of whom displayed what looked like a handgun.  The individuals demanded money from the victim though he refused to comply, and the suspects ran off.  Police were called and officers quickly were able to identify and detain two suspects matching the description of the assailants.  In addition to assault in the first degree, the defendants now face robbery, reckless endangerment, second-degree assault and firearm use in a crime of violence charges.  The Glen Burnie man is being held at the county jail after he was denied bail by a Maryland District Court Judge.  A preliminary hearing is currently set for early November in Annapolis, but the case will likely be forwarded to the Circuit Court for Anne Arundel County by way of indictment or criminal information before the preliminary date.

The Blog will continue to follow this case and may post a follow up article in the future when it is resolved.  In the meantime, this fact scenario presents an interesting legal question, which we often encounter in Maryland courts.  Can a person be charged with armed robbery when using a BB gun or other type of replica firearm?  First off, there is no charge named armed robbery in the Maryland criminal code and there is no charge for attempted robbery.  A person who is accused of taking or attempting to take something of value with force will either be charged with robbery or robbery with a dangerous weapon.  It would be less confusing if lawmakers used the term armed robbery like they use armed carjacking, but they mean the same thing.  Under Maryland law a dangerous weapon is defined as an object that is capable of causing death or serious bodily harm.  Courts have consistently ruled that BB guns can cause bodily harm because they shoot a projectile, so a person can be charged with robbery with a dangerous weapon when a BB or airsoft gun is used.  On the other hand, a person cannot be charged with a felony first-degree assault for using a BB gun unless the victim suffered serious physical injury.  The law regarding first-degree assault requires the State to prove the gun was a firearm, which is a device that uses an explosive to expel a projectile.  BB guns generally use springs or compressed air to expel projectiles, so they are not firearms.

It is a separate question whether a replica toy gun is considered a dangerous weapon, and the answer to this question may be up to the finder of fact.  If the toy gun was a hard metal object a jury could easily consider it a dangerous weapon that could cause injury.  On the other hand, if the replica was a plastic toy or water gun there would be a good argument that it is not a dangerous weapon.  Once again, replica or toy guns could not be used to support a felony assault charge absent serious physical injury.  BB guns and replicas also can’t be the basis for a charge of use of a firearm in a crime of violence.  The fact that this defendant was charged with use of a firearm in a crime of violence and it’s mandatory 5-year sentence seems unjust.  Hopefully the judge did not consider this count when deciding bail.
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image-5-225x300Montgomery County Police officers recently arrested a 67-year-old man after he was pulled over while driving a van with activated flashing blue and red lights.  The Montgomery Village man’s Ford also sported the words police and the insignia of HAPCOA, which is the Hispanic American Police Command Officers Association.  Upon being approached by the stopping officer, the driver responded attempted to explain that he was a former police officer and then declared that he was working with authority from the Maryland Secretary of State.  This explanation did not satisfy the officer, who later ordered the driver out of his vehicle and immediately placed him in handcuffs for possessing a weapon, which turned out to be a replica.  Search of the vehicle incident to arrest revealed numerous law enforcement related items including a ballistic vest, shirt labeled “HAPCOA POLICE”, baton, taster in a holster, handcuffs, Baltimore City Police badge and police tape.  The man was arrested for impersonating a police officer and was taken to the Montgomery County Detention Center.  He was also issued multiple traffic citations for driving with flashing lights without authorization and driving with visible blue lights, which are payable citations.

Despite the serious nature of the offense, a District Court Commissioner made the appropriate decision to release the defendant on an unsecured bail, so he did not have to spend the night in jail.  His case is currently set for trial in mid-October at the Rockville District Court, though it remains to be seen if the case will be resolved on that day.  It does appear that a motion to suppress evidence was filed, which means the defense may try to argue that the arrest was unlawful, and thus the search incident to arrest that revealed all the police paraphernalia should be excluded.  Motions to suppress are typically argued on the day of trial in district court cases, when all witnesses are scheduled to be present.

The Maryland Public Safety Code section 3-502 describes three main scenarios where a person could be charged with impersonating a police officer.  The first is when a person is accused of falsely representing themselves as a police officer with fraudulent design.  It is not completely clear whether the driver identified himself as a police officer but upon hearing the full interaction on body worn camera a judge or jury could make this conclusion.  They would then have to also conclude that the identification as law enforcement was done with fraudulent design.  It is not illegal to simply advertise yourself as police, as this type of language, without more, could be considered protected speech under the First Amendment.  The second type of police impersonation occurs if a person is accused of wearing, displaying or simply having a police badge, shield, patch or identification that is used by police officers in the state of Maryland.  This portion statute would appear to apply to this case, though if the search is deemed to have been unlawful then the police badge would not be admissible in evidence.  Finally, the State can prove a police impersonation case by offering evidence that a defendant possessed or used an imitation police article for the purpose of deception.  The defendant in this case clearly used police style lights and possessed numerous imitation police equipment, but the issue for the fact finder would be whether these items for possessed or used for the purpose of deception.  We have dealt with numerous police impersonation cases where a driver is accused of using police lights to frighten or intimidate another driver or even effectuate a fake traffic stop.  If proven, these types of acts would qualify as deception.  However, in this case the man appeared to simply be driving with his imitation police lights, which without more, may not satisfy the deception prong.

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image-4-225x300A Virginia man was recently indicted in the Circuit Court for Saint Mary’s County after he crashed his car at the Maryland International Raceway.  Thankfully, the 37-year-old was a spectator and not a participant in any of the drag races at the Mechanicsville track.  According to reports an off-duty state trooper working security at the track responded to a multi vehicle crash involving a SUV and a parked recreational vehicle.  The defendant apparently crashed his Chevy Suburban into the unoccupied RV shortly before the off-duty trooper arrived.  Upon contacting the driver, the trooper allegedly observed the defendant to have glassy, bloodshot eyes and slurred speech.  These are the initial signs of driving under the influence, and almost all DUI reports will contain this standard language (even if not true).  At some point during the interaction the trooper observed in a firearm in plain view on the driver’s side floorboard of the vehicle.  This alone would have given the trooper probable cause to detain the driver, but it appears that field sobriety tests were administered before the arrest.

As with all gun cases the trooper contacted the gun center to determine if the defendant had a valid concealed carry permit.  Not only was he carrying without a valid Maryland permit, but he was also prohibited from possessing a firearm due to a 2011 assault conviction.  This took the case from a misdemeanor wear, transport and carry case to a felony unlawful possession of a firearm charge.  Under the Maryland Public Safety Code section 5-133 a person found in possession of a firearm after being a convicted felon or having a conviction for misdemeanor assault faces up to 15 years in prison for having a gun.  The first 5 years is without parole, but there is one exception that does appear to apply to this defendant.  If a person completes his or her sentence (including probation) more than 5 years before the new case, then the 5-year prison term is not mandatory.  This defendant was convicted of assault in 2011, which means he was likely off parole and/or probation more than 5 years ago.

Upon being placed under arrest the defendant was taken back to the barracks and offered a breathalyzer test.  He consented to the test and blew .16, which is twice the legal limit of .08.  The arresting officer issued 5 total citations including DUI, DUI per se, DWI, reckless driving and negligent driving.  Maryland State Troopers often add reckless and negligent tickets in their drunk driving stops, and all law enforcement officers usually charge both DUI and DWI.  DUI per se is charged when a defendant blows over .08 on the breathalyzer.  Defendants in Maryland DUI cases typically face several citations, and in some cases, it could be as many as 10 or more.  In reality a good defense strategy should result in most of the citations being dismissed, so it’s best not to pay the payable citations before court.

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Gun-evidence-box-300x225The U.S. Attorney’s Office recently announced the guilty plea in an online firearms trafficking operation that involved multiple federal law enforcement agencies.  According to facts uncovered in at the plea hearing the ATF and the United States Postal Inspection Service began investigating the illegal sale of firearms and machinegun conversion devices on social media.  These machinegun conversion devices (MCD) have been a major point of emphasis for both federal and state law enforcement over the last few years.  The most common device is widely known as a “Glock Switch” due to the fact that it can easily be attached to Glock brand handguns.  Glock switches can be fabricated using 3D printers and, despite being small and cheap to produce, can make a handgun exponentially more deadly.  MCDs can easily transform a semi-automatic handgun into a machinegun with a few snaps of the finger, and when combined with large capacity magazines, can spray upwards of 30 rounds in a matter of seconds.  On top of this, it is almost impossible to accurately fire a handgun fitted with a MCD, which adds to the deadliness of the device.

Machinegun conversion devices are classified as machineguns under the National Firearms Act.  26 U.S. Code and 18 U.S. Code define machinegun s as any weapon that is designed to automatically shoot more than one round by a single function of the trigger.  In other words, holding down the trigger one time to expel multiple bullets. Possession of a MCD can lead to felony firearm offense charges even if there is no gun or ammo recovered from the defendant.  The production of MCDs is similar to that of ghost guns, and the two make a deadly combination that has the full attention of law enforcement.

In this case, the defendant, a 26-year-old man from Frederick intercepted a package after tracking its sale on social media.  Postal inspectors intercepted the package that was addressed to the defendant and obtained a search warrant to open the parcel.  Investigators then discovered a Glock .40 caliber semi-automatic handgun with an illegal extended magazine containing 30 rounds of ammunition.  Police used this evidence to obtain an additional search warrant for the defendant’s home in Frederick County.  Execution of this search warrant revealed an additional 10 mm Glock handgun, 400 rounds of ammunition and three Glock Switches.  Also seized were multiple gun cases, ghost gun boxes and over $20 in cash.

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image-3-225x300In January the playoff game between the Ravens and the Steelers came to an unexpected halt.  At first, fans believed the extended timeout was due to a television issue.  As the stoppage continued some spectators were able to see a small green light overhead the stadium but there was still no official word about the delay.  Play finally resumed around the time that social media posts picked up on the fact that someone had been flying an unauthorized drone over the stadium.  That someone, a 43-year-old Baltimore man, was eventually arrested and charged with knowingly and willfully violating national defense airspace under 49 United States Code section 40103(b)(3).  This statute is designed to protect large gatherings of people and violations are punishable by up to 1 year in jail.  On the date of the game the FAA put a temporary flight restriction over the Ravens stadium, which per the plea was willfully violated by the defendant.  According to the United States Attorney’s press release, flight restrictions are common over NFL, MLB and college football stadiums beginning 1 hour before the game and ending 1 hour after.  Flight restrictions are also instituted at large auto racing venues.

Based on facts that were uncovered at the plea and sentencing hearing in the Baltimore federal courthouse, both the FBI and the Maryland State Police tracked the drone’s flight path and responded to the area where it landed.  Although nobody was at the location where the drone landed law enforcement was able to track the movement of the suspect and eventually showed up at his residence to make the arrest.  Police were able to recover 7 pictures taken by the drone from over 400 feet above the playing field, which prosecutors used as evidence in support of the plea.  Recently a U.S. District Court Judge sentenced the defendant to 1 year of probation, 100 hours of community service and a $500 fine.  The defendant is no stranger to the court system, as he has several prior criminal contacts including a conviction for CDS distribution in Baltimore City and illegal possession of a regulated firearm in Baltimore County.  He was also found guilty of violating a protective order and granted probation before judgment.

While this case is hardly the crime of the century, it is an example of the of the government’s motivation to prosecute cases involving the use of drones.  Drones have become increasingly more sophisticated, capable and easier to acquire due to advances in technology, and this presents an issue when dealing with protected airspace such as military installations and large outdoor gatherings.  State and federal law enforcement face a tough challenge going forward to assure the safety of the public when it comes to civilian drone use, and a case such as this will ideally serve as a deterrent to potential offenders.  The Blog will continue to follow these relatively new types of prosecutions and may post a follow up article if state lawmakers decide to address drone use in the next legislative session.  If you have been charged with a crime in state or federal court, contact Maryland criminal defense lawyer Benjamin Herbst anytime for a free consultation.  Benjamin specializes in defending federal citations from Fort Meade, NSA and the BW Parkway and is highly familiar with the workings of the Greenbelt and Baltimore City courthouses.  He handles all types of charges from firearm possession at a federal facility to DUI and is available 7 days a week for a free consultation at 410-207-2598.

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technology-2500010__480-300x200The embattled Maryland juvenile justice system is back in the news, and this time the headlines appeared in several national media outlets.  Laurel police recently arrested a 16-year-old boy and ultimately linked him to as many as 121 car burglaries.  Multiple law enforcement agencies were involved with the investigation including Howard County Police, Prince George’s County Police and the aforementioned Laurel Police Department.  The alleged incidents took place during the first week of May, and shortly thereafter various law enforcement agencies began combing through eyewitness statements and doorbell camera footage.  The footage revealed at least three teenagers, some of whom donning masks and headlamps, smashing car windows and climbing through to grab items within their reach.

Juvenile records are sealed from public view, but we do know that police linked one of the suspects to more than one hundred burglaries.  He will likely face dozens of charges for rogue and vagabond, which is the Maryland law that covers the breaking and entering of a motor vehicle to commit theft.  Other charges likely include theft, theft scheme and malicious destruction of property.  All of these crimes are misdemeanors, but the juvenile may face felony prosecution if he was charged with theft over $1,500 and/or motor vehicle theft.  Outrage from police and others ensured after this juvenile was released from custody 5 hours after his arrest, but the fact that he was released before being detained at a secure juvenile facility should not come as a surprise to those who are familiar with the Maryland juvenile justice system.

Most juveniles who are arrested will be released to their parents with a promise to appear in court.  The only exceptions are in cases where detention is required to protect the child or others, or if the child is deemed to be a flight risk.  Few juveniles are actually determined to be flight risks due to their lack of resources unless there is a record of numerous failures to appear, so the more relevant consideration is whether the juvenile presents a danger.  In this particular situation the child was only charged with property crimes, albeit more than 100, but still property crimes where victims were not present.  In addition, unless the juvenile was charged with felony offenses he could not legally be detained before a hearing.  Maryland law prohibits the detention of a juvenile prior to a hearing who is charged with a misdemeanor unless the misdemeanor is a gun offense such as possession of a firearm by a minor or the juvenile has two prior delinquency findings in the past 12 months.  Based on the charges and the lack of record for this juvenile, it is safe to say that the intake officer’s hands were tied, and release was a foregone conclusion.

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annapolis-237078_960_720-300x195The 2025 Maryland Legislative Session recently came to an end with lawmakers failing to tackle numerous criminal justice issues.  Despite the fact that Annapolis lawmakers have repeatedly expressed a desire to address the inundation of ghost guns, no consequential gun legislation landed on the Governor’s desk.  Ghost guns have been illegal to possess in Maryland since 2022 unless they are properly serialized and registered.  Over the last three years the penalties for illegal possession and the accessibility of the parts have not changed, and police continue to seize ghost guns from juveniles and young adults at an alarming rate.

Just in the last 30 days two teenagers were arrested after ghost guns were found in public schools.  The first incident occurred at a Charles County high school at the end of April after a 17-year-old student’s bag was searched due to an overwhelming smell of marijuana.  The second incident occurred just this week at Gaithersburg High School when a 15-year-old student was found in possession of a loaded ghost gun.  The Blog will continue to follow the ghost gun epidemic, but it is a complex issue since the buying and selling of the materials used to create these firearms will likely remain protected by the Second Amendment.

In addition to the ghost gun issue, there has also been much talk about juvenile justice reform.  The legislature has flipped back and forth from passing softer juvenile justice policy to tightening up the system with stricter legislation.  This year lawmakers in Annapolis punted on juvenile justice to the disappointment of many who were hoping for crackdowns on increasing juvenile crime.

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22186_klauandlauf-300x225Retail theft in the Baltimore Washington Metro area has reached critical levels over the past few years, and has resulted in numerous store closings in high crime areas.  This trend has also contributed to price increases and a general sense of uneasiness for store employees and shoppers alike.  The trend has not gone unnoticed, and this year lawmakers have decided to fight back by passing a bill targeting organized retail theft.  Senate Bill 11 was a major priority for Annapolis lawmakers and it will likely be signed by the governor and become state law on October 1.  Organized retail theft is defined as the commission of a series of thefts of retail merchandise over a 90-day period with the intent to permanently deprive the owner of said merchandise.  It can be committed by one person or a group of persons acting under the same scheme or plan.  The kicker is that if the thefts are committed across multiple jurisdictions the State can add the total value of the alleged thefts when considering which charges to file.  Currently retail thefts committed in two separate counties would have to be charged in two separate cases.  If the value of each theft was less than $1,500 the defendant would face two misdemeanor offenses with a 6-month maximum sentence.  Come October, this same defendant could face felony organized retail theft charges in either county (but not both), which would carry up to five years in prison.

The penalties for theft have decreased over the last several years, as the legislature has increased the threshold for a felony from over $1,000 to over $1,500.  Lawmakers have also reduced the penalty for misdemeanor theft from 18 months to 6 months.  Shoplifting under $100 maintained its 90-day maximum penalty.  Currently Maryland Criminal Law Section 7-104 provides enhanced penalties for repeat offenders, but unlike many other repeat offender provisions, the theft enhancement only comes into play for a person with 4 or more prior convictions.  Under this rare circumstance the penalty for misdemeanor theft over $100 but less than $1,500 jumps to 5 years in prison provided the State serves the defendant or the attorney at least 15 days before trial.

Past reductions in theft penalties may not have made a material contribution to the rise in organized retail theft, but lawmakers may be regretting the recent trend nonetheless.  It remains to be seen how often the State will prosecute defendants under the new organized retail theft law, as it would require communication between multiple law enforcement agencies and prosecutor’s offices.  In other words, the enforcement would have to be more organized than the criminal acts.  It will be interesting to see how long it takes for the first prosecution to occur, as we still think this provision would be rather rare.  We are not saying this bill is merely a nice headline for lawmakers, but there is a real chance it ends up being a paper tiger when it’s all said and done.
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gun-728958_1280-300x169The United States Attorney’s Office recently announced a 44-year-old man from Silver Spring was sentenced to nearly 5 years in prison for possession of a firearm by a convicted felon.  He was also charged with possession of ammunition by a convicted felon due to the firearm being loaded when it was seized by police.  According to facts that were recited during the plea agreement, an off-duty police officer with the Riverdale Park Police Department was working as a restaurant security guard when he was informed about a suspicious individual possibly possessing a firearm.  A restaurant employee apparently told the off-duty cop that a patron entered the establishment with a fanny pack that potentially contained a gun.  The tip was corroborated when two other individuals reported that they had been threatened with a firearm while at the restaurant.  Officers responded to the scene and found the suspect by the door to the restaurant’s kitchen.  Upon seeing the officers, the suspect fled and discarded the fanny pack as he was running.  Police apprehended the suspect and located the fanny pack, which contained a Glock .45 caliber handgun loaded with 8 rounds of ammunition.  Police later determined that the suspect was prohibited from possessing a firearm due to a prior felony conviction.

While the criminal acts in this case occurred in Prince George’s County, the man was prosecuted in the United States District Court for the District of Maryland rather than in Upper Marlboro at the PG County Circuit Court.  All federal criminal cases from the southern portions of Maryland including PG County, Charles County, St. Mary’s County and the Eastern Shore are prosecuted in the Greenbelt Courthouse, which is where this defendant was recently sentenced.  The official sentence included 58 months in federal prison followed by 3 years of supervised release.  Supervised release is basically the federal term for probation.  This case could have been prosecuted under state law, but federal prosecutors are constantly looking for firearm cases involving convicted felons to beef up their conviction records.  Just last week another Maryland man from St. Mary’s County was indicted on similar charges after the St. Mary’s County Sheriff’s Office conducted a search warrant of his Lexington Park home and found an AK-47 rifle. 

There is no specific formula for when the feds will pick up a gun cases from state court, but they will almost always involve convicted felons in possession.  Firearm possession by a disqualified individual such as a convicted felon is illegal under federal law and state law, which means either the feds or the local state’s attorney’s office can charge a person in Maryland.  Gun crimes do not need to be committed on federal property for the feds to have jurisdiction, and they do not have to be investigated or charged by federal agents to be prosecuted by the U.S. Attorney’s Office.  The U.S. Attorney’s Office can step in at any point and charge a person, which usually results in the state case being set for a nolle pros. in circuit court.  While the Maryland state charge for possession of a firearm by a convicted felon carries the same 15-year maximum penalty as the federal charge, federal prosecutions carry a stigma for being tougher in defendants.  In reality the 5-year mandatory sentence for a felon in possession of a firearm in state court may result in a harsher sentence than a case with similar facts in federal court.  If a person has numerous prior convictions, his or her federal guidelines will likely be higher than the state guidelines, but the state has the minimum mandatory.  Overall, it can be a tossup which jurisdiction is better for a particular defendant.  Either way, all defendants are urged to contact an experienced Maryland gun crime lawyer.  The Blog will continue to follow these federal prosecutions and may post a follow up article as gun possession cases continue to end up in the Baltimore and Greenbelt courthouses.  If you been charged with felon in possession of a firearm or any other gun crime in state or federal court, contact Benjamin Herbst anytime at 410-207-2598.
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annapolis-237078_960_720-300x195Juvenile justice reform continues to be a hot button issue in Annapolis, as lawmakers recently debated measures to decrease the number of cases where minors are charged as adults.  In previous legislative sessions gun laws and marijuana dominated the criminal justice headlines, but state policy on these topics is somewhat settled for now.  Juvenile justice however is a fluid issue, with strong arguments coming from both sides.  Last year numerous State’s Attorney’s Offices lobbied for decreasing the age of juvenile criminal jurisdiction for certain non-violent crimes from 13 to 10.  That law passed and went into effect in October.  Now Public Defenders and other lobbyists from around the state are seeking to eliminate the direct filing of adult charges for 16 and 17-year-old juveniles in many offenses, including some violent felonies.  If the bill passes these teens would be charged in juvenile court and then see a magistrate judge for a detention hearing rather than a bail review.  Their cases would then be on the juvenile timeline, which is generally much quicker than an adult case.

Senate Bill 422 seeks to increase the juvenile court’s jurisdiction over 16 and 17-year-olds who are charged with numerous crimes such as robbery, firearm possession and assault in the first degree.  Current Maryland law requires teens in this age group to be charged as adults if they are arrested for these crimes and others such as third-degree sexual offense, attempted robbery and all crimes involving possession or the use of a firearm.  These juveniles are arrested and booked into the adult jail facilities pending a bail review, and many are initially held without bail.  Juveniles held without bail have the opportunity to request detention in a secure juvenile facility, but transfer could take several days.  A large percentage of these direct filed cases end up in juvenile court by agreement of the attorneys or if the judge grants a motion for reverse waiver to juvenile court, but this process could take several months.

An experienced juvenile criminal defense lawyer should file for the reverse waiver immediately upon being retained, but there are still unavoidable delays in setting matter for a hearing.  The Department of Juvenile Services must first complete a study and provide this information to the Court.  DJS often fails to meet the deadlines imposed by the Court, and in some jurisdictions DJS completes the study but the hearing is set way down the road.  On average, juveniles charged as adults will wait about 5 months for cases to be resolved or transferred to juvenile courts.  Those in favor of changing the law argue that this 5-month wait costs the state millions of dollars due to the high cost per day of detaining a juvenile and the slow nature of the transfer process.  This argument does not factor in the percentage of juveniles who are released pending a waiver transfer hearing.
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