Criminal Defense Lawyer Blog
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cannabis-1418339__340-300x290The Maryland House of Delegates has done its part to assure that Maryland will legalize the recreational use of marijuana in the near future, and now the matter is in the hands of the Senate.  Back in December we posted about House Bill 1 that was pre-filed before the 2022 legislative session began in Annapolis.  The bill was designed to get the ball rolling and establish that legalizing marijuana would ultimately be up to Maryland voters in the November general election, and it passed easily in the House.  The next step was to hammer out the specific regulations regarding recreational cannabis use, and this bill, House Bill 837 also passed easily.  Last week both of these bills were up for discussion in the Senate, and it appears there will be no major roadblocks to coming up with a mutually agreeable policy.

House Bill 837 lays a detailed foundation for what Maryland citizens can expect if recreational cannabis passes in November.  Senate Bill 833 attempts to carve out the same regulations, but it differs slightly in terms of lawful amounts and potential punishments for violations.  The bill that ultimately passes the General Assembly will probably be a conglomerate of both bills, so at this point we’ll just point out the general rules that citizens can expect when pot becomes legal in 2023.  The House and Senate both agree that the lawful amount of marijuana a person can possess in public should be more than 10 grams.  The House is currently proposing a personal use limit of 1.5 ounces or 2 plants, while the Senate is proposing 2 ounces or up to 4 plants.  It seems that anyone 21 or older will be able to possess at least 1.5 ounces without fear of being issued a civil citation for unlawful possession of marijuana.  The House also included a separate threshold for the “civil use amount” but his seems unnecessary and confusing.  Both the House and Senate seem to agree that smoking pot in public should be a civil offense punishable by a fine.  Those who are in violation would be issued a civil violation citation by a police officer, which is similar to a traffic citation.  The person receiving the citation could pay the fine, request community service in lieu of the fine or request a trial date to contest the citation (or ask for probation before judgement).  Defendants who are charged with civil marijuana violations must respond to the citation in some manner, or risk having their case become part of the public record.

The House and Senate also addressed the cultivation of marijuana and potential violations for exceeding the permitted amounts in their respective bills.  The House seemed to bring the hammer when it comes to growing pot, as its proposal makes it a misdemeanor punishable by up to 3 years in jail for growing more than 2 plants.  The Senate bill maintains that growing more than 4 plants would be illegal, but only trigger a civil violation.  It is important to understand that the eventual recreational cannabis law would still prohibit distribution or possession with intent to distribute.  There has been no indication that this offense would be reduced to a misdemeanor, though at some point in the future this could be something lawmakers consider.  The Maryland sentencing guidelines are already changing this summer independent of cannabis legislation, and the recommended sentences for most drug cases are thankfully decreasing.  It would be nice if we could affirmatively say that no street level marijuana transactions could result in a jail sentence, but it seems we’re just not there yet.  On the other hand, the House and Senate seem to agree that those with prior marijuana related cases should not be at risk of damaging background checks.  When the law goes into effect next year it will almost certainly include provisions for the automatic expungement of older cannabis cases.

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hammer-719066_960_720-300x225This past week in Annapolis a sweeping juvenile justice reform bill passed in the Maryland Senate, and now the bill heads to the House for debate.  The 23-page bill proposes numerous modifications to the existing juvenile justice system, but perhaps the most noteworthy is the section that would eliminate most prosecutions of juveniles under the age of 13.  Juvenile criminal courts currently have jurisdiction over children as young as 7, but the new measure would end criminal prosecution of children under 13 unless they are charged with crimes of violence such as first-degree assault, robbery, felony sex offenses, arson and attempted murder.  In these situations, the minimum age for  criminal prosecution in a Maryland juvenile court would become ten.  This measure would free up resources for juvenile offenders who are facing more serious charges, and who may benefit from a wider range of services provided by the department.

Another major change proposed in the juvenile justice bill would give more authority for intake officers to resolve cases before they are sent to court.  Currently juvenile services intake officers must forward all felony cases to the State’s Attorney’s Office.  The State then has 30 days to decide whether to file a juvenile delinquency petition in the appropriate circuit court.  In contrast, a juvenile intake officer may resolve a misdemeanor by closing the case with a warning or offering informal supervision.  Misdemeanor cases would still be able to be filed in the circuit court if the State or the victim objects to the intake officer’s decision.  This is a long overdue modification, as it is a major waste of resources to set juvenile cases for intake hearings if there is no chance the case can be resolved.  Intake hearings for felony cases are currently futile, as the officer’s hands are tied.  Rather than keep a blanket provision that strips the intake officers of power to do their job, the legislature is moving toward trusting the officers to make a decision on a case-by-case basis.  There are limitations on this proposal however, as intake officers would still have to forward all felony crimes of violence to the State, as well as cases where the allegation is causing or attempting to cause death or physical injury to another.  The physical injury terminology may have to be revised to reflect serious bodily injury though, as physical injury is a rather general term.

The bill also adds a provision that allows the State and the defense to hold delinquency proceedings in abeyance in favor of a term of informal adjustment.  If the State and defense agree, the child may have the ability to complete certain conditions and then be awarded with a dismissal of the delinquency petition.  This type of diversionary track has traditionally been accomplished by way of a STET, but establishing an official system to avoid adjudications going on a juvenile’s record is a welcomed tool.  Other new provisions include reducing the time between detention hearings for all juveniles held to every 14 days instead of every 25 days, and barring juveniles from being sent to out-of-home placements if the most serious charge is a misdemeanor or on a technical violation of probation.  Firearm offenses would be the exception to this provision, and may still result in placement out of the home.

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1249005_glock_29_replica_1-1-300x168There was significant movement last week in highly publicized state measures to curb the circulation of unserialized firearms commonly known as ghost guns.  Both the House and Senate preliminarily approved legislation that would eventually ban the sale and ownership of the untraceable firearms in Maryland.  These untraceable guns have been a major point of contention for police and law makers alike, and have undoubtedly contributed to an increased number of gun crimes over the past couple of years.  The gun components are often made of polymer or other materials that are easy to fashion yet strong enough to withstand the explosion of a cartridge being fired, and are relatively cheap.  Basically, anyone with internet access and a Venmo account could order the components to make a working firearm in a matter of hours.  Therefore, it’s no surprise that a state like Maryland that already has some of the toughest gun laws in the country is making serious moves to eliminate untraceable firearms.

Ghost guns are generally defined as firearms that lack an identifiable serial number and are manufactured privately or in the home.  The parts are typically purchased in kits or created at home using 3D printers, thought the kits are more common these days.  Federal law does not prohibit private individuals from manufacturing their own firearms for personal use, but does place firm restrictions on the manufacture of firearms for sale or distribution.  Gun parts manufacturers that sell these kits are able to skirt federal restrictions by only selling parts that are considered unfinished.  The difference between a finished and unfinished gun receiver (the part that joins the firing components) is a fine line in which the manufacturers are fully versed.  They intentionally sell receivers that are less than 80% finished and require some basic machining, for which they provide the drill bits and instructions.  Obtaining ammunition is still a task that presents a challenge for those prohibited from possessing firearms, but ammo is cheap and small, and thus easy to purchase or obtain unofficially.

After a bit of back and forth over the last couple of months it seems the General Assembly has settled on a timeframe for implementing the ghost gun ban, and also prospective punishments for those who violate.  First, the prohibition will not become law until March 1, 2023 at the earliest.  Second, the punishments for violating the ghost gun laws have been slightly reduced to a maximum of two years in jail for possession and a maximum five years in jail for sale or distribution.  Both of these offenses would be misdemeanors, thought a defendant may still be charged with additional applicable felonies such as possession of a firearm by a convicted felon and possession of a firearm in a drug trafficking crime.  There may also be a provision in the law that requires the State to prove an element of knowledge.  In other words, it may be a defense if the person charged did not reasonably know the firearm was a ghost gun.  Under potential ghost gun laws, the State Police would be tasked with establishing databases for ghost guns and tracking serial numbers to make sure there are no duplicates.
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money-943782_960_720-300x225The U.S. Attorney’s office recently announced that a 31-year-old Montgomery County man has been arrested and charged with being a felon in possession of a firearm, distribution of controlled substances and possession of a firearm in furtherance of a drug trafficking crime.  A criminal complaint was filed against the defendant on March 4, 2022 and he was arrested on March 7.  The Germantown man was ordered to be held without bail at his detention hearing in the Greenbelt federal courthouse two days after his arrest.  According to the sworn affidavit in support of the criminal complaint, the defendant was identified as a suspected narcotics and firearms dealer.  In February of this year the defendant sold guns and drugs to an undercover law enforcement officer three times in Montgomery County.  The sales allegedly included more than 45 grams of crack cocaine, gel caps containing heroin and fentanyl and numerous firearms including multiple ghost guns.  The term ghost gun is used to describe any privately made firearm that does not have a serial number and cannot be individually identified or traced.  These weapons have become a point of focus for law enforcement over the last few years, and will continue to be a major issue for state and federal legislators.

In addition to the three alleged sales in February, the defendant and the undercover law enforcement officer also met a fourth time.  During this meeting the defendant allegedly sold the cop three fully assembled Glock style handguns for a total of $3,000.  The sale was observed by additional law enforcement surveillance units, and memorialized by several calls and text messages.  In addition to the four meetings, the defendant also apparently admitted to the undercover officer that he could not legally purchase a firearm due to a previous felony conviction.  The defendant faces up to 10 years in prison for felon in possession of a firearm and up to 20 years for distribution of controlled substances.  He also faces a mandatory minimum sentence of 5 years for possession of a firearm in furtherance of a drug trafficking crime.  This federal offense is almost identical to the Maryland state law that prohibits the possession of a firearm in a drug trafficking crime.  The government is not required to prove that the firearm was actually used or brandished during the drug trafficking crime.  Rather, all that is required is for the government to prove a nexus or connection between the gun and the drugs.  Courts have consistently held that drug dealers possess firearms to protect themselves against theft and robbery, which makes it difficult for the defense to argue that the guns and drugs are not related.  A drug trafficking crime includes all felony drug charges such as possession with intent to distribute, manufacturing and distribution. Despite the use of the term trafficking, there is no requirement that the government prove the defendant was a volume dealer or drug kingpin for this law to apply.

The Blog will continue to follow this case and many other federal gun and drug prosecutions.  We may post a follow up article on this case depending on the outcome so stay tuned.  If you or a loved one has been charged or is being investigated by the ATF, FBI, DEA or any other federal or state law enforcement agency contact Benjamin Herbst anytime for a free consultation.  Benjamin is a Maryland criminal defense lawyer who specializes in drug crimes and weapons charges, and is available 7 days a week to explain what defenses may be available in your case.  He handles charges including wear transport or carry of a handgun and illegal possession of a regulated firearm, and practices in all state and federal courts in Maryland.  Benjamin can be reached at 410-207-2598 and is also licensed to practice law in the state of Florida.

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pills-384846_1280-300x200This week the Maryland State Police arrested two motorists on drug charges after conducting a traffic stop shortly after midnight on Interstate 97.  The stop occurred near the Benfield Boulevard exit in Millersville, which is right by the Anne Arundel County Police headquarters and criminal investigations buildings.  Upon stopping the vehicle for an alleged traffic violation, the trooper discovered that the 32-year-old female occupant from Dundalk in Baltimore County had four outstanding arrest warrants for drug charges.  A search of the vehicle allegedly produced 11 grams of heroin, 42 grams of crack cocaine, 48 Xanax pills, drug paraphernalia and cash.  Both suspects were then arrested on multiple drug charges and booked into the Anne Arundel County detention center.  MSP did not divulge exactly how the officer obtained probable cause to search the vehicle, but based on the circumstances the most likely sources of PC to search were the outstanding warrants for the female suspect’s arrest.  Anyone with an outstanding warrant can be arrested, and then searched incident to that arrest.  In traffic stops the vehicle can also be searched and inventoried pursuant to the arrest.

The 39-year-old male defendant from Pennsylvania was charged with two counts each of misdemeanor drug possession and felony CDS possession with intent to distribute, as well as an additional drug paraphernalia charge.  He was seen by the commissioner and then released on a $15,000 bail.  This defendant appears to have lengthy criminal history, which may create a difficult situation for his defense once this case goes to court.  Judiciary casesearch shows at least three prior convictions for drug felonies in Baltimore County.  When you add in the prior violation of probation the defendant’s guidelines for a PWID narcotic charge would be at least 4-8 years, and that’s factoring in a potential reduction due to the age of the prior cases.  His guidelines could end up being as high as 7-14 years, which is a big number even at the bottom.  The guideline ranges for street level narcotics distribution charges are excessive to say the least, especially when compared to violent offenses such as robbery and assault, but that’s a post for another day.

The female defendant did not fare as well, and is still being held in the detention center.  She was charged with the same counts as her co-defendant plus an additional charge for prescription fraud under Maryland law 5-701, which appears to be related to allegedly removing or altering the label on the bottle of Xanax.  On top of that, she apparently gave either a fake name or fake ID to the trooper in an attempt to avoid being arrested on the warrants, and was subsequently charged with fraudulent personal identification to avoid prosecution under Maryland law 8-301.  Both of these fraud related charges are misdemeanors, but the latter will certainly raise concerns for any judge at bail review.  Possessing fake identification and/or using fake names is an act the state always argues makes the defendant a flight risk.  The defendant was in fact held without bail at her bail review in the Annapolis District Court just this morning.  She must now wait for her attorneys to file a motion to reconsider her bail status at some point in the future, or wait for her case to be transferred to the circuit court where she would be entitled to an additional bail review.

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hammer-802296__480-300x225In a highly controversial decision at the Montgomery County Circuit Court in Rockville, a judge has ordered an alleged murder’s case to be transferred to juvenile court.  The decision angered family members of the four victims, one of whom had died from gunshot wound injuries.  The defendant was originally charged as an adult with one count of murder in the first degree and three counts of attempted first-degree murder in addition to various assault and firearm offenses for allegedly firing 16 rounds of ammunition into a crowd at a Germantown basketball court.  The defendant, who is considered a respondent now that the case has been transferred, was accused to using a homemade polymer ghost gun to fire the shots.  At the time of the incident he was just 14 years old, and now that the case has been transferred, he could be released from a secure juvenile facility in less than one year.  The judge explained his opinion over the course of 30 minutes, and sided with the defense despite strenuous objection from the Office of the State’s Attorney.

While the families of the victims have every right to be outraged by the decision, the judge was bound to follow the rule of law in Maryland, which has changed drastically in the past year.  Any juvenile who is charged as an adult may petition to transfer the case to juvenile court.  This has become known as a reverse waiver hearing, and the judges are required to weigh five independent factors including age of the child, the child’s physical and mental condition, the child’s amenability to treatment in a juvenile facility or program, the nature of the offense and public safety.  In the past too many judges have focused on the nature of the offense, and if it was especially violent the transfer would be denied in the name of public safety.  Pursuant to what is now known as the Davis case, judges are no longer allowed to make these swift, allegation based decisions.  The Court of Appeals in Davis reiterated that the controlling principal of the justice system is protection of the public, and that a juvenile delinquency program that is most effective at treating, educating and rehabilitating offenders will best protect the public in the long run.  Amenability to treatment has become the determinative factor when considering transfer, and the other four factors ultimately lead up to amenability.  Amenability in this context is best interpreted as whether a child would benefit from a juvenile program.  If the answer is yes, then the case should be transferred regardless of the underlying nature of the charges.

The defendant was originally charged as an adult because Maryland juvenile courts do not have original jurisdiction over individuals 14 and over who are facing charges that carry life in jail.  The first-degree murder and attempted murder charges all carry life in prison, which means the juvenile court did not have original jurisdiction over the defendant.  In most other cases a juvenile must be at least 16 before being charged as an adult, but for life felonies the minimum age is 14.  All defendants who are between 7 and 13 years old will be charged as juveniles, and can only be prosecuted in adult court if their case is waived up at a discretionary waiver hearing.  If your child is facing charges in any Maryland court contact juvenile criminal defense lawyer Benjamin Herbst anytime for a free consultation.  Benjamin has successfully argued for the transfer of numerous individuals to juvenile court, including a recent armed robbery case where the individual had already turned 18.  He has represented clients in every county in Maryland and is also an experienced federal criminal defense lawyer who specializes in firearm offenses and white collar crimes such as theft of government property and fraud.  Benjamin is available 7 days a week at 410-207-2598 to discuss the defenses that may be available in your case.

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pills_money-300x199This week in the Greenbelt federal courthouse a 35-year-old man from Saint Mary’s County pleaded guilty to distribution of fentanyl and being a felon in possession of a firearm.  According to facts presented by the government at plea agreement, three individuals traveled from Calvert County to St. Mary’s County in order to purchase narcotics from the defendant on March 1, 2021.  The three individuals then returned to Calvert County, where two of them ingested the narcotics they had just purchased.  One of the drug users became unresponsive after ingesting the narcotics, and the other two administered Narcan and called 911 after also performing CPR.  First responders were unable to revive the victim, who was pronounced dead on the scene.  Police came to investigate and were unable to recover the rest of the narcotics after they were discarded in the woods by the remaining two individuals.  The medical examiner ultimately concluded the death was caused by fentanyl and alcohol intoxication.

An investigation, which likely included statements made by the two remaining individuals and cell phone data, led police to the defendant in St. Mary’s County.  A search warrant was executed on his Lexington Park address 11 days after the drug deal and subsequent deadly overdose.  Law enforcement recovered a host of contraband including 30 plus grams of a mixture containing fentanyl, heroin and acetaminophen.  They also recovered plastic baggies, cutting agents and a scale that law enforcement would have testified was evidence of drug distribution.  In addition to the drugs and paraphernalia, police also seized a Polymer 9mm “ghost gun” handgun with a 30-round extended magazine loaded with 21 rounds.  Additional magazines and ammunition were seized as well as over $7,000 in cash. The drugs were tested at the crime lab and the gun was test fired by the ATF, and both yielded positive results.  The defendant is a convicted felon after being found guilty of possession with intent to distribute narcotics back in 2020.  He was on probation for that offense and just received a violation of probation sentence of 3.5 years.

Making matters worse for all involved, the man committed these acts while on pre-trial release for another offense out of St. Mary’s County.  It looks like that offense was for accessory after the fact, which carries a punishment that depends on the primary charge but is capped at 5 years.  The exception being that accessory after the fact to first degree murder carries a 10-year maximum penalty.  The defendant was actually wearing his pre-trial release GPS ankle monitor when police showed up to execute the search warrant, which is clearly not a good look for our continued fight to have defendants released pending trial in favor of being held without bail.

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handcuffs-2102488__480-300x169An assistant basketball coach at the University of Maryland was suspended last month after being charged with prostitution back in October in Prince George’s County.  The suspension is set to be completed this week, which means he could return to the sidelines as early as this Thursday when Iowa visits College Park.  The University announced the suspension on January 12, so the more likely return for the coach would be for this weekend’s road tilt against Purdue.  According to news reports from various outlets including the New York Post and the Baltimore Sun, the 40-year-old coach was arrested at a hotel in Largo after he reached out to an undercover detective posing as a prostitute.  The police posted a fictitious online advertisement under the general category of “women seeking men”, and the coach agreed to meet at a neutral location.  Upon arriving at the hotel, the coach and the undercover were in the room together when he allegedly requested sex in exchange for $80.  As soon as the coach handed over the money, the undercover officer gave an arrest signal to the takedown team waiting in the next room.

The takedown team is typically a group of 2 to 4 officers in uniform or police tactical vests who are monitoring the undercover and the suspect by audio and sometimes video.  While this type of surreptitious recording is typically illegal under Maryland and federal wiretapping laws, there are exceptions for law enforcement to monitor the safety of officers or confidential informants who are conducting investigative activities.  As soon as the arrest signal is given, some or all of the takedown team enters the room and places the suspect under arrest.  From there the police can actually choose to arrest the suspect on the spot, or take his or her information and issue a criminal summons at a later date.  The charge of prostitution under 11-306 carries a maximum penalty of 1 year in jail, which means an officer is not permitted to issue a criminal citation.  Criminal citations are generally only permitted for crimes that carry a maximum penalty of 90 days or less.  In this particular case the coach was arrested and booked for one count of prostitution general.  He was released by a District Court Commissioner a few hours later on his own recognizance, which is normal a standard misdemeanor solicitation charge.

This type of prostitution sting has been used by law enforcement for roughly the last decade, and while there have been hundreds if not thousands of arrests, it’s hard to measure the overall deterrent effect on the prostitution trade.  It seems that those who wish to seek out prostitutes and those who wish to offer these services will continue to find a way to link up regardless of the threat of arrest.  We expect that this type of law enforcement tactic will continue to be employed even as various websites have been shut down.  While the large majority of defendants arrested for prostitution crimes are simply seeking sex without strings attached, the motivation for law enforcement’s continued efforts to stop prostitution is to ultimately crack down on human trafficking.  The hope is that by eliminating the potential client base you can eventually eliminate the sex trafficking altogether, though the war on drugs has taught us this is more of a law enforcement money grab than a reality-based solution.

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bullet-408636_640-300x200A 26-year-old Washington D.C. man has been charged with attempted 2nd degree murder and related firearms offenses after shooting at police officers during a foot chase.  The incident began at an Olney indoor swimming center, when employees called the police to report a suspicious individual on the property.  The Maryland National Capital Park Police responded to the scene to investigate, but the suspect had already left the area.  Police officers eventually caught up to the suspect’s vehicle, but he fled when police attempted to initiate a traffic stop.  Park Police officers declined to initiate a high-speed chase, but continued to canvass the area to locate the suspect’s vehicle.  A short time later the suspect’s vehicle was in fact located, though the suspect had fled on foot after his car was involved in an accident.  Police found the suspect in a residential neighborhood within minutes, but before they were able to place him into custody, he allegedly fired one shot at officers in pursuit.  Thankfully, the bullet struck an empty parked car and nobody was injured.  The suspect was then taken into custody and then booked into the Montgomery County Detention Center in Rockville.  He was charged with attempted 2nd degree murder, first-degree assault, reckless endangerment, and use of a firearm in a crime of violence for shooting at the officers.  Additionally, he was charged with possession of a firearm by a convicted felon and loaded handgun in vehicle, and is being held without bail.

The defendant was already on probation in Montgomery County after he pleaded guilty to robbery almost two years ago.  This guilty finding is the reason he was prohibited from possessing a firearm.  In that case he was sentenced to 18 months in jail with an additional 6.5 years of suspended time, which will now be on the table when he appears for a violation of probation.  This could explain why the defendant was so motivated to avoid being captured by police.  In reality, his decision to fire at the police officers will likely far outweigh any possible punishment for the violation of probation.  The defendant also has three new additional criminal cases that will also likely take a back seat to the attempted murder.  He has two theft and credit card fraud cases out of Montgomery County, as well as an additional armed robbery case from Prince George’s County for an alleged incident that occurred just three weeks ago.  It is safe to say that the defendant will be held in the Montgomery County Correctional Facility until a trial or a plea is scheduled, with the only exception being the potential that he is charged in federal court for his actions.

The Blog will continue to follow this case and may post a follow up article in the future.  It does not seem likely that this case will end up going to trial, as the evidence of guilt appears to be significant.  It may be in the best interest of the defense to attempt to organize some sort of global plea agreement on the shooting case that includes the violation of probation and the new theft charges.  A speedy plea agreement may prevent the matter from being picked up by the feds, though the Prince George’s County armed robbery may prove to be an obstacle.  The defendant’s guidelines will likely end up being either 7-13 years or 10-15 years on the attempted murder, which all things considered could be much worse.  Any plea offer would almost certainly include a charge for felon in possession of a firearm or use of a firearm in a crime of violence.  In shooting cases the state typically requires this charge to assure that the first five years of the sentence are served without the possibility of parole.  Regardless, the defendant would only be eligible for parole after serving at least 50 percent of the sentence, as the charges of attempted murder and first-degree assault are considered crimes of violence.

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Gun-evidence-box-300x225A 37-year-old man from Baltimore City was recently sentenced to 9 years in federal prison after he pleaded guilty to gun and drug charges.  After serving his sentence, which under federal law does not have the possibility of parole, the defendant will be placed on 3 years of supervised release.  This case is another example of a crime that was originally charged in state court, but eventually picked up and prosecuted by the feds.  There does not appear to be any indication that the defendant was a large-scale dealer or that he had been under investigation by law enforcement, and there were no aggravating factors that made this violation particularly egregious.  On the other hand, the feds have consistently been delivering the message that any felon who possesses a firearm in Baltimore will be subject to federal prosecution, and thus a harsher sentence.  9 years without parole is certainly a harsh sentence for a non-violent offense, but it is hardly a surprising sentence considering the climate in Baltimore right now.

According to the plea agreement the man and several associates were standing on a city sidewalk when a vehicle containing Baltimore Police detectives drove by.  As the BPD patrol unit made a U-turn to approach the group, the defendant apparently walked away from the group in a manner that seemed to indicate he was armed. Police stated the defendant kept his “right arm stiff against his body” as he walked away, which is a common phrase that law enforcement uses when attempting to establish justification for a weapons search.  Detectives then exited their vehicle and began to walk toward the defendant, likely to conduct a pat down for weapons.  The defendant elected not to cooperate with whatever the BPD was attempting to do, and he took off running.  Police stated that the defendant threw a firearm with his right hand while he was running away, and they eventually apprehended him in the area.  Upon placing him under arrest police discovered 42 capsules of heroin, 33 capsules of fentanyl, 29 vials of cocaine and several baggies of marijuana.  They also eventually found the handgun along with an extended magazine that was discarded during the chase.

This case presents an interesting issue regarding the legality of so-called proactive police patrolling in urban areas.  Clearly the officers were not specifically looking for the defendant, and there is no indication they received a tip that the individuals on the sidewalk were armed.  Rather, the police were acting on their own suspicions when they made the decision to approach the defendant.  Had the defendant remained where he was or simply walked away from law enforcement, there may have been an argument that any detention was illegal.  An illegal detention would have triggered a potential motion to suppress the gun and the CDS found on the defendant, but the fact that he fled effectively ended any realistic constitutional challenges to the police conduct.  The law is very clear that a person is not seized by law enforcement if he or she takes off running upon their approach.  Additionally, a person does not have any constitutional standing to challenge the seizure of items that are thrown away or abandoned by a suspect.  Running from police is not illegal by itself, but as soon as this defendant was observed throwing a gun and a magazine there was probable cause to arrest him.  Only then could police lawfully detain the man and search him incident to arrest.  This case played out like many have in the past, and unfortunately there was not much the defense could do but argue for a lower sentence.

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