Criminal Defense Lawyer Blog

Published on: September 9, 2019

Two Drug Dealers Sentenced In Federal Court

Last week two Maryland defendants were sentenced to more than a decade in federal prison for drug distribution charges that were far from run of the mill. The first case originated in Annapolis where the defendant, a 25-year old Howard County man, met up with a female buyer and sold her heroin. The next day the female buyer was found unresponsive in her Bowie apartment, and was pronounced dead on the scene after Prince George’s County paramedics were unable to revive her. Law enforcement arrived and recovered a dose of heroin, and in an effort to locate the suspected dealer took possession of the female’s cell phone. Sure enough the defendant sent a text just a short time later offering to sell her more heroin. Police officers responded to the text posing as the female victim, and made arrangements for another drug deal. Police conducted a traffic stop of the defendant’s vehicle near the pre-arranged meeting place for the drug transaction, and observed white powder on his pants as he stepped out of the car. Police also observed white powder and a small folded piece of paper on the floor by the passenger seat where the defendant had been sitting. There were three other individuals in the car including two minor children. Search in incident to arrest yielded the cell phone that had been used to set up the drug deals.

Rather that challenge the legality of the search and seizure, the defendant elected to admit to the allegations and plead guilty. There could have been a variety of legal arguments aimed at suppressing the physical evidence recovered from the defendant and the vehicle, but it is unlikely the defendant would have prevailed. The defendant did not have standing to challenge the seizure of the victim’s cell phone, and it is not illegal for the police to pose as a drug buyer and set up a totally fictitious deal. It is not clear exactly how the traffic stop transpired, but police likely had probable cause to arrest the defendant after observing the white powder on his pants, and/ or confirming that he was indeed the person who agreed to sell heroin to the victim. Once police recovered the defendant’s cell phone getting a signed warrant to search the phone would have been a foregone conclusion. In addition to pleading guilty to distribution of heroin, the plea also required the defendant to admit that a person died as a result of his role in selling the heroin. While the defendant did not plea to an enhanced crime for the sale of narcotics resulting in an overdose, it was made part of the permanent court record and undoubtedly factored in to sentencing considerations. The presiding judge at the Greenbelt federal courthouse would have also considered the defendant was not a first offender, as he has a robbery conviction from Baltimore County, as well as several other contacts with law enforcement.

Just one day after the defendant in the heroin case was learned his fate, another convicted drug dealer was sentenced 11 years in federal prison for possession with intent to distribute cocaine and marijuana and conspiracy to distribute more than 5 kilograms of cocaine. This case also spanned multiple jurisdictions, as police officers were called to investigate an armed robbery in Baltimore County. Upon identifying a suspect for the robbery, police executed a search warrant in Glen Burnie, and recovered large amounts of cocaine, cash, marijuana and two guns. This case did not end with a plea bargain, but rather went all the way to trial, where a federal jury convicted the defendant after 5 days of testimony. The original robbery and subsequent search occurred in 2016, but the defendant fled prior to his first trial date in November of 2018. He was a fugitive for more than a year before being captured and brought to trial this past spring.

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Published on: September 3, 2019

Which Charges Disqualify You From Gun Possession?

By Benjamin Herbst

Maryland has some of the toughest gun laws in the country, and a large number of these laws are designed to punish people for illegal possession of handguns, rifles and shotguns. There are numerous different provisions in the state code that address gun possession, and there are a few that are somewhat obscure. Most people know that being convicted of a felony prohibits a person from ever possessing a gun, but this is far from the only restriction placed on a former defendant in a criminal case. The public safety code actually lists more of the impactful gun laws in the state than the criminal law code, and thus it can be hard for layperson to even find the Maryland gun laws. Remember that not being aware of the laws will not buy you any sympathy in court, as the classic saying of ignorance of the law is not an excuse comes to mind. If you cannot find the gun laws that may apply to you then reach out to an attorney just to be sure. The following is a brief overview of some of the Maryland gun laws that may apply to normal everyday people.

As of a couple years ago anyone who wants to purchase a handgun in Maryland has to apply for and be granted a license or HQL. The HQL laws do not apply to rifles and shotguns, so you can walk into any sporting goods store or gun shop, fill out a form and leave with a powerful firearm. Clearly, the state legislature as singled out and targeted handguns, but this doesn’t mean the laws are relaxed when it comes to rifles and shotguns. Many people believe that the strict Maryland gun laws only apply to handguns due to the notoriety of the HQL and all that it entails, but this could not be further from the truth. If you are prohibited from possessing a handgun you are undoubtedly also prohibited from possessing a rifle, shotgun or any other type of firearm. This includes muzzle loaders or even antiques that are in a case or mounted on a wall. If it fires a bullet then it’s a firearm. It may be easier to buy a hunting rifle but it definitely is not safer to possess one if you’ve been convicted of a criminal charge.

Without a doubt the most common reason a person would be prohibited from possessing a firearm is if they have been convicted of a disqualifying crime. Under Maryland law a disqualifying crime means any felony and any misdemeanor that carries more than a two-year maximum penalty. If you pled guilty to any offense, no matter how long ago it occurred you should check the exact statute to make sure you can legally possess a gun. Even if you never travel with a gun it is not advisable to have one in your home if you have been convicted of a crime. You never know when a police officer could enter your home, as we have seen cases where police show up on an unrelated matter and find guns. Probation before judgment or PBJ is not considered a conviction for gun possession purposes unless the PBJ was granted in a domestically related second degree assault charge. Anyone who has faced a domestic violence charge should contact a lawyer before deciding to possess a firearm in Maryland. In addition all individuals who have an active peace order or protective order are not allowed to possess any type of firearm until the order expires are is withdrawn by a judge.

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Published on: August 27, 2019

How Can I Find Out If I Have A Warrant?

By Benjamin Herbst

Finding out that there is a warrant for your arrest is stressful and frightening, but it’s even worse if you think there is a warrant but you can’t find out for sure. The uncertainty and the waiting can often be a great deal more stressful than just taking care of the warrant and moving on with your life, but unfortunately in Maryland the judicial system is set up to keep many warrants sealed. The two types of arrest warrants in Maryland are bench warrants and arrest warrants. District or circuit court judges commonly issue bench warrants in cases where the defendant fails to appear or has violated a condition of his or her probation or pre-trial release. A judge can also issue a bench warrant for failure to pay fines or court costs, though this is much less common. Bench warrants are pubic and easily accessible by searching online or going to the clerk’s office. Arrest warrants on the other hand are issued by court commissioners or judges upon receiving a charging document from the State’s Attorney’s Office, a police officer or a civilian. Arrest warrants are sealed for 90 days or until served, which means the public will not be able to look them up on the case search website.

If you think you may have an arrest warrant there may be ways for you to confirm it, but this depends where your case is located. Some police departments such as Montgomery County are more than happy to check to see if you have a warrant, and even have warrants departments for this very purpose. It seems in their eyes there is a greater likelihood a person will schedule a turn in if they can know for sure there is a warrant. Other counties like Baltimore County have a strict policy where they will only give out warrant information to the defendant in person by showing up at a precinct. Baltimore County and many other police departments around Maryland do not give out warrant information over the phone, even to a lawyer. This obviously makes it more difficult to plan for a surrender prior to a warrant squad coming to get you at an inconvenient time. There is really no sound logic to keeping all warrants sealed, as most people who think they have a warrant will behave as if they do have one, and not just sit back and wait to be arrested. The exception is the issuance of a warrant pursuant to a sealed indictment in a complex criminal investigation where the risk of flight is high, but these cases are not the norm (especially in the state court system).

If you are able to find out that there is an arrest warrant the two most sensible options are to attempt to file a motion to convert the warrant into a summons or to surrender on your own terms. A criminal defense lawyer can file a motion to convert an arrest warrant into a summons as long as he or she can locate the case number. Some district court judges will deny these motions as a matter of course and cite the District Court Administrative Regulations, but these regulations do not clearly prohibit a judge from converting a warrant into a summons, so it’s always worth a shot. If the motion is denied the next best option is to schedule a surrender at a police precinct or a commissioner’s office that is next to a jail or police station. Defendants who are served with an arrest warrant will have to be booked before seeing the commissioner, so the process may take several hours. In arrest warrant cases where there is a pre-set bail the defendant will not see the commissioner and can post bail as soon as the booking process is completed. Defendants can also wait until the next day to see the judge to request a reduced or unsecured bail, or release on recognizance.

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Published on: August 19, 2019

Marijuana No Longer Grounds For Personal Search

By Benjamin Herbst

Maryland’s highest court recently ruled that law enforcement officers are no longer permitted to search a person who is in possession of less than 10 grams of marijuana. The case came to the Court of Appeals after a Silver Spring man was arrested for possession of cocaine with intent to distribute, and later pled guilty to this charge in the Montgomery County Circuit Court. The guilty plea was entered conditionally pursuant to the Maryland rules, which allows a defendant to withdraw his or her plea if an appeal is successful down in road. In this case the defendant argued the search of his person was illegal and moved to have the cocaine suppressed, but the circuit court judge did not agree and the Court of Special Appeals, Maryland’s intermediate appeals court in Annapolis, didn’t buy the argument either. Both lower courts sided with the state that the search of the defendant was incident to a lawful arrest, and in doing so relied upon case law from the days before possession of marijuana under 10 grams became decriminalized.

The crux of the defendant’s motion was logically sound, but the case law just wasn’t’ there for the defendant’s attorney to make a bulletproof argument. The defendant argued that Montgomery County police officers did not have probable cause to search the his person based on their observation of a half smoked joint in his car. The officers testified that all they smelled was the odor of burnt marijuana and all they saw was the joint, and they not offer any evidence that led them to believe there was more than 10 grams of marijuana in the car. Possession of less than 10 grams has been classified as a non-arrestable civil infraction for the last few years. The Supreme Court has long held that you cannot have a valid search incident to arrest if you don’t have a valid arrest in the first place, and this is exactly what transpired. In fact, one officer testified the defendant was arrested for possession of cocaine, but also agreed that he did not find the cocaine until the defendant was placed under arrest. Given the unequivocal testimony of the state’s witnesses it is somewhat surprising that the two lower courts did not side with the defendant, but again, the Maryland case law was not there yet.

The Court of Appeals reminded us that the police officers still maintain the lawful ability to search the defendant’s car regardless of whether officers believe a criminal act is in progress. Marijuana might be decriminalized, but it’s still illegal to possess in any amount without a medical use card, and as such is classified as contraband. The automobile exception has long since limited the amount of privacy we have in our cars, especially while in a public parking lot. If police observe a person with contraband in a car they will almost always perform a search, as this is how many larger drug and gun cases begin. Had the cocaine been anywhere in the defendant’s car the search, arrest and conviction would have been valid and upheld, but the fact that it was in his pocket made all the difference in the world. The defendant in this case received a felony conviction and a partially suspended sentence, but now the high court’s ruling will reverse the conviction. The defendant may have already served his sentence, but the bigger picture is the establishment of a clear rule that a suspect may not be searched based on the observance of a non-criminal amount of marijuana.

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Published on: August 12, 2019

Carroll County Robbery Sparks Debate Over Store Security

By Benjamin Herbst

Last week an armed man dressed in black and wearing sunglasses and a hat walked into an Eldersburg Walmart and demanded money from a cashier. The store employee complied and the armed robber fled the scene in a Chevy sedan without incident. The robbery occurred shortly after 7 in the morning on a Friday, and coincidentally law enforcement officers were about to start patrolling that same shopping center at 8 a.m. The entire incident lasted no more than a couple of minutes, and appeared to be unrelated to any previous robbery, but it left a sour taste in mouth of the top local law enforcement officer in Carroll County. The Sheriff of Carroll County went on record to publicly bash the big box store’s security, or lack thereof. He stated that company policies are not aimed at stopping crime in the stores, but rather holding it to an acceptable level. The sheriff described this policy as reactive rather than proactive, and even went so far as to say the company’s hands off approach breeds criminal activity not just in Eldersburg, but at other locations in Mount Airy, Hampstead and Westminster. The additional criminal activity has allegedly placed a greater strain on law enforcement compared to other businesses, which are better equipped to handle their own security.

Armed robberies at big box stores such as Walmart, Target, Costco and Home Depot are not common, and even the sheriff admitted that he hadn’t recalled specifically whether one had occurred in the last five years in Carroll County. But armed robbery is not the only type of crime that draws law enforcement resources away form other tasks. Even minor offenses such as shoplifting and other types of thefts typically require the presence of law enforcement officers in order to initiate charges. In a typical shoplifting case the loss prevention officer or LPO will stop and detain the suspect and then call the police to make an arrest or issue a charging document. The whole process could take more than an hour, and if police are tied up issuing citations or statements of charges for shoplifting cases then they can’t be out on the road ready to respond to emergencies. The disdain for the largest big box retainer in the country is likely rooted in an abundance of calls to service for minor offenses rather than a major crime like armed robbery.

The company insists it places customer safety as their ultimate priority, but law enforcement officers are not so convinced. Unlike many other retailers there are no uniformed security officers in Walmart (armed or unarmed) and loss prevention officers are typically in plain clothes or out of sight, which limits their deterrence factor. The company has spent millions on limiting the amount of product loss due to shoplifting and employee theft by hiring greeters at entrances and receipt checkers at the exists, but these measures are not really aimed at protecting the customers. Big box stores attract hundreds of people at a time, and these days any large gathering of people can be seen as a target. The sheriff is concerned that spaces with large crowds should be protected by security at all times, not just when officers are assigned to do a routine patrol. The concern is certainly valid, and there will probably be a time when all big box stores have their own uniformed security guards. These mammoth stores are almost like their own shopping malls and you rarely, if ever, come across a mall without its own security.

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Published on: August 5, 2019

Federal Intervention Produces Numerous Baltimore Arrests

By Benjamin Herbst

The United States Attorney’s Office for the District of Maryland recently announced the results of several federal law enforcement efforts aimed at targeting the most violent neighborhoods in Baltimore City. In the last month alone law enforcement closed investigations that resulted in the arrest of 90 defendants on serious federal crimes such as drug distribution and possession of a firearm in the furtherance of a crime. Multiple law enforcement agencies including the FBI, ATF, DEA, Homeland Security and the Baltimore Police Department participated in the investigations, which in addition to the 90 arrests yielded 51 firearms, almost $1 million in cash and kilogram amounts of drugs. The controlled substances seized were fentanyl, heroin, cocaine and marijuana, which are the most common street drugs of the times.

According to this release federal law enforcement separated their investigations by neighborhoods or territories. Police targeted a certain section of the city that includes a couple blocks or street corners, which they likely identified by following the buyers. Once they had the area in their sights law enforcement set up shop and began gathering evidence they ultimately needed to bring to federal prosecutors and then the grand jury. In this past release the U.S. Attorney’s Office revealed the investigations into four separate locations across the city. The first investigation in East Baltimore produced 25 arrests in total, with 10 being charged with illegal firearm possession by a prohibited person. A person can be prohibited for a number of reasons including prior felony convictions or even prior misdemeanor convictions. A separate West Baltimore investigation produced six drug distribution and firearm arrests, including one charge for possession of an illegal fully automatic firearm. In Southwest Baltimore another 38 defendants were charged for their involvement in a drug trafficking ring that had ties to Virginia, Pennsylvania and West Virginia. Finally, a Northwest Baltimore investigation produced 21 arrests for distribution of fentanyl and crack cocaine, and possession of firearms.

Each of these individual investigations falls under the umbrella initiative called Project Safe Neighborhoods or PSN, which is the federal government’s key crime reduction component in Baltimore. In the first half of 2019 the feds indicted 215 defendants compared to a total of 246 in the entire year of 2018. The U.S. Attorney’s Office anticipates this trend will continue and that they will charge 50% more defendants with violent crimes this year than in 2018. The top law enforcement officer in Maryland has stated repeatedly that reducing violent crime in Baltimore is priority number one, and if so the work will have to continue for years. The governor and the even the president have not been shy about their feelings about Baltimore, and this pressure is definitely felt by the law enforcement community in the city. The only way to appease the politicians and the public is to make arrests and secure convictions, but sometimes those that are not responsible for the violence become scapegoats for the actions of others.

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Published on: July 29, 2019

Former Judge Sentenced In DUI Case

By Benjamin Herbst

A former Washington County Circuit Court judge recently pled guilty to DUI and was sentenced to 30 days in jail at a recent court appearance in Frederick County. The judge is no stranger to appearing as a defendant, as he was also charged with DUI back in 2009. In the 2009 case the judge pled guilty and was sentenced to supervised probation, a sentence that was modified two years later to PBJ. The facts of the 2009 case were quite alarming, as the former judge was driving with a BAC of .18, more than twice the legal limit and considerably higher than the .15 threshold for enhanced penalties. In this case the judge sideswiped another vehicle at an intersection and injured the driver, and there was also a 3-year old passenger in the vehicle that luckily was uninjured. Needless to say when the judge appeared as a defendant for a second time last week he faced an uphill battle to avoid a jail sentence.

The defense likely requested a probation sentence, but this request fell on deaf ears. Instead of probation the former judge was immediately taken into custody to begin serving his month long sentence in the Frederick County Detention Center. An appeal to the circuit court was filed the same day, but the former judge remains in custody and will serve out the rest of his sentence after release was denied at his bail review hearing a week later. The former judge was not granted the benefit of probation before judgment, which means he will receive 12 points on his drivers license. He may face suspension or revocation unless a Frederick County Circuit Court judge decides to grant PBJ at his next court appearance in August, or down the road with a modification of sentence motion.

All district court judgments are subject to appeal in the circuit court, where the case starts over as if nothing ever happened. This de novo appeal process comes with a catch though; if a defendant is sentenced to jail or probation in the district court he or she will have to begin serving that sentence unless the judge specifically states the sentence will be stayed or continued. In cases where the defendant is jailed, there may be the possibility of posting a bail while the appeal is pending if the sentencing judge grants an appeal bond. The other option is to request a bail from the circuit court, which in this case proved unsuccessful.

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Published on: July 22, 2019

Man Arrested For Vandalizing Multiple Cars

By Benjamin Herbst

A 34-year old Prince George’s County man was recently arrested for vandalizing five cars and taking property from at least three of them. The county police reported the arrest, and stated the defendant may be linked to vandalizing as many as 18 cars in a single 24-hour period. He is currently being held at the Prince George’s County detention center after a district court judge denied his release at a bail review hearing. Maryland judiciary case search lists the man as residing in Upper Marlboro, but this address may not have been current, which could have been a reason why he was denied bail. It also seems as if the defendant has been on the run for quite some time, as a violation of probation warrant was issued for his arrest back in 2010 in a Charles County case. He was on probation for felony first-degree burglary, and was given a 20-year suspended sentence with 5 years of probation in 2008. There are no other Maryland convictions in the man’s past, but he has been charged numerous times with crimes in PG County. All cases, including charges for arson, burglary, rouge and vagabond and theft) appear to have all been nolle prossed (dismissed by the state), leaving the Charles County case as his only prior conviction.

While this case may be confusing at first glance, it is important to realize that the defendant was not arrested for actually stealing the cars, but for stealing items out of the cars. The traditional legal term for breaking into cars is rouge and vagabond, but when items are actually stolen the police will charge the suspect with theft, and malicious destruction of property if there was damage to the car. Rogue and vagabond is essentially the Maryland version of burglary of a motor vehicle. The Maryland burglary laws only apply directly to breaking and entering homes (dwellings) and stores, and the yards or gardens of each. While rogue and vagabond is a misdemeanor that carries a 3-year maximum penalty, the penalty for stealing from a vehicle depends on what was actually stolen, and the amount of damage the person caused when breaking in to the vehicle.

Malicious destruction of property is always a misdemeanor, and carries a maximum penalty of 60 days in jail if the value of the damage caused was under $1,000, and 3 years in jail if the damage was over $1,000. Theft on the other hand can be a felony if the amount of the goods stolen exceeds $1,500. If the theft occurred over multiple days the state can charge based on the total amount of the entire theft scheme. The punishments for theft in Maryland were recently reduced by the Justice Reinvestment Act or JRA, and now the longest sentence for misdemeanor theft is 6 months as opposed to 18 months under the old law. The punishment for felony theft starts at 5 years and can go all the way up to 20 years for theft over $100,000.

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Published on: July 14, 2019

Nine Boating Under The Influence Arrests During Holiday

By Benjamin Herbst

Nine recreational boaters were arrested for operating a vessel under the influence during the July 4^th weekend according to the Maryland Natural Resources Police. The Natural Resources Police or NRP is the enforcement arm the Department of Natural Resources or DNR, and among other duties is responsible for patrolling the state’s hundreds of navigable waterways. They are especially busy during the summer months, with July 4^th and Labor Day being perhaps the single two busiest days on the water each year. The main duty of NRP officers during these heightened times is to keep boat operators and their passengers safe out on the water, and boat safety checks are one of the most effective ways to achieve this goal. NRP officers conducted close to 2,000 safety checks over the holiday weekend and issued almost 700 citations for violations of the State Boat Act, which is part of the Waters section of the Natural Resources code.

If you are operating a vessel on a Maryland waterway during a holiday weekend there is a good chance you will be approached by an NRP officer for a safety check. Unlike a traffic stop on state roadways, boating officers do not need reasonable suspicion to approach a vessel to conduct a safety check. NRP officers can make close contact with vessel operators and their passengers at basically any time, and this contact can quickly turn into a criminal investigation.

During boat safety checks the officers will make sure the required safety equipment is present and that the number of occupants does not exceed Coast Guard limits, but the officers are always on the lookout for the possibility of drug use or an impaired operator. If an officer suspects that the operator is under the influence he or she may request the operator to submit to field sobriety exercises and a breath test similar to what occurs during a DUI investigation out on the road. A boat operator is not required to submit to a breath test unless there is an accident involving death or serious injury, but refusing could trigger a one-year suspension of operating privileges. The penalties for operating a vessel under the influence of alcohol or drugs are basically the same as the penalties for drunk driving. Boating under the influence of alcohol carries a 1-year maximum jail sentence and a $1,000 fine, while boating while impaired carries a 60-day jail sentence and a $500 fine. These citations are often accompanied by charges for operating a vessel in a reckless or dangerous manner. Unlike its traffic counterpart in the transportation code, under the Maryland boat law operating a vessel in a reckless or dangerous manner carries a potential 30-day jail sentence for a first offense and a 60-day sentence for a subsequent offense. These citations are criminal must appear citations, and failure to appear could trigger an arrest warrant. While a conviction for operating a vessel under the influence or reckless operation could result in a criminal record, they do not trigger driver’s license suspensions.

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Published on: July 7, 2019

Co-Defendants Convicted In Federal Robbery Trial

By Benjamin Herbst

The U.S. Attorney’s Office for the District of Maryland recently announced that a federal jury came back with guilty verdicts for two Washington D.C. men charged with committing armed robberies in Prince George’s County. The verdict came after seven days of trial at the U.S. District Court in Greenbelt. According to evidence presented by the government at trial the two men robbed an auto repair business in Clinton, Maryland back in November of 2016, and then just four days later robbed a barbershop close to the D.C. line in Seat Pleasant. During the first robbery the men entered the shop brandishing firearms and ordered the two employees to the ground and stole their money. One employee was bound with zip ties while the other fought back and was shot. The shooting victim was severely injured and according to the government is now paralyzed. After committing the auto repair shop robbery the co-defendants fled in a stolen car and were not captured.

Four days later the same two co-defendants committed another armed robbery in nearby Seat Pleasant, and this time it didn’t end so well for the pair and their unidentified getaway driver. After robbing patrons at a barbershop in a similar manner as the auto repair shop, the co-defendants fled in a stolen minivan. Only this time, police spotted the getaway car at an intersection and attempted to make a stop. The three robbers tried to flee from police and bailed out of the van to attempt to run away on foot, but two were captured almost immediately and other was captured a short time later. Upon searching the stolen van police recovered two loaded 9 mm handguns, one of which had an obliterated serial number.

While one of the defendants was awaiting trial in jail he apparently urged multiple acquaintances to visit the barbershop and dissuade witnesses from testifying. These conversations were recorded and introduced into evidence by the government, which led to a conviction for witness tampering in addition to multiple other convictions including armed robbery, use of a firearm in a crime of violence and possession of a firearm by a convicted felon. Inmates that are incarcerated pending trial often make the mistake of assuming their jailhouse conversations are private, when in fact the government is always listening. These conversations are admissible in court, and are frequently used to convict defendants in cases where other evidence may be lacking. Defendants and their families should conduct their conversations as if the prosecutor or law enforcement were right there in the room, as there is no reasonable expectation of privacy in jail.

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