Criminal Defense Lawyer Blog

Published on: June 13, 2018

Police Ramping Up Eastern Shore Patrols

Depending on where you live schools are either out or ending Friday, and the annual senior week pilgrimage to Ocean City is already underway. Pretty soon traffic will be piling up on Bay Bridge each weekend, and Route 50 will be jam packed with beachgoers. If you venture east not only will you be sharing the road with thousands of station wagons and SUVs filled to the brim with coolers and chairs, but also with state and local law enforcement. Maryland State Police have officially launched their “Lose the Booze” initiative for 2018, and are teaming up with local law enforcement on the Eastern Shore to combat underage drinking and DUI. The Easton Police Department, Talbot County Sheriff and Caroline County Sheriff have already joined the initiative, and other law enforcement agencies in the area will certainly be on high alert for all drug and alcohol related offenses.

Police on the Eastern Shore are notorious for making arrests on the few thoroughfares that head to Ocean City and the Delaware beaches. Route 50 is really the only direct way to Ocean City for beachgoers from Maryland, Washington D.C. and Virginia. Police patrolling 50, 301 and 404 will always profile a car full of young adults/ teenagers and look for any excuse to make a traffic stop to investigate further. Out of state license plates do not help the cause either. Pennsylvania vacationers avoid most of the Maryland highways on their way to the beach but their PA license plate still sticks out on Coastal Highway and other roads inland. Most of the time it’s speeding, but an officer who locks on to a car is legally permitted to make a stop for any type of traffic infraction, no matter how minor. Once the traffic stop begins the officer can then use his or her observations to develop probable cause for a search.

Upon making a traffic stop Eastern Shore police officers are immediately looking for signs of impairment. All police are trained to look for clues of DUI or DWI but officers in Ocean City and the surrounding areas almost expect it. This is especially true on weekends in the afternoon, evening, or even first thing in the morning for those drivers who have not quite slept it off. Cops that encounter teenagers or anyone that looks under the age of 21 will be on high alert for alcohol in the vehicle. Minors in possession of alcohol can be charged with a civil citation and face up to a $500 fine, which all minors in a car could be subject to if the alcohol is found in the passenger compartment.

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Published on: June 8, 2018

Trouble Continues For Baltimore Police

By Benjamin Herbst

Fresh off an embarrassing turn of events where Baltimore’s top cop resigned after just 4 months on the job, the city police department is back in the news for the wrong reasons. This week an ongoing investigation involving another high ranking police officer became public, and that officer has since been suspended and removed from her position as the department’s representative in a national police organization. The officer in question held the ranking of major and oversaw the entire robbery and non-fatal shooting unit. She was in charge of over 30 detectives who investigated thousands of robberies per year before being suspended this week. The misconduct that led to the suspension involved the misappropriation of funds from a non-profit organization she created to mend the relationship between cops and the community. While the officer may have mended some relationships, she also used over $2,000 of the foundation’s money to purchase plane tickets for a European vacation with her kids.

News of the major’s misconduct was not released by the police department, the State’s Attorney’s Office or the feds as would be typical in a situation such as this. Rather a reporter for the Sun broke the story that ultimately forced the department’s hand at the suspension. The information about the misconduct came to light in a closed custody hearing between the major and her ex-husband who is also a high-ranking officer in the department. The husband apparently disclosed to the Court that he became suspicious of the misconduct after coming across a bank statement in the trash that showed the non-profit’s funds had been used for personal reasons. He also turned this information over to the internal affairs, which began their investigation of the major back in December. The internal affairs investigation was kept secret from everyone else in the department, and also from the national police organization that was no doubt embarrassed and irked that one of its members had been under investigation for six months for stealing from a charity.

News about the soon to be ex-major came within a month of the police commissioner resigning after being charged with tax evasion by the federal government. The department totally failed to properly vet the commissioner and then the mayor made the situation even more embarrassing by offering support of her chosen top cop even after he was charged. The mayor seemed to minimize the charges by alluding that the ex-commissioner simply failed to prioritize his personal affairs when he violated federal law, which is a ridiculous statement on so many levels. The ex-commissioner now faces up to one year in jail and a $25,000 fine for each of the three misdemeanor counts that represent the three years he failed to file. It will be interesting to see how this case plays out, and whether the former commissioner will be held to a higher standard than an average Joe who fails to file.

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Published on: May 30, 2018

No Bail Holds Rampant In Baltimore

By Benjamin Herbst

The inmate population at state correctional facilities in Maryland is steadily decreasing, but sadly the reverse is occurring at Central Booking in Baltimore City. From 2017 to 2018 the number of inmates held at the notorious jail facility jumped more than 20 percent from an average of 655 inmates per day to 856 per day. The overall crime rate has gone down and arrest numbers have decreased over the last decade, leaving bail reform as one of the only possible culprits of the inmate spike. But before blaming bail reform, which effectively eliminated the unjust and presumably corrupt cash bail system, you must first look to the human beings who make the decisions to hold defendants without bail.

In February of 2017 Maryland’s highest court approved sweeping changes to the unjust cash bail system. These changes became effective roughly one year ago, and almost every jurisdiction is actually abiding by Court’s mandate, when determining release, to use the least restrictive means to assure the safety of the community and to assure the defendant’s presence in court. Baltimore City seems to be the one outlier and the one jurisdiction where pre-trial inmate numbers are skyrocketing, so you cannot simply blame the new bail system. Rather, the blame should be focused on the individuals who are tasked with implementing the new bail system and have since failed to do so in Baltimore City. The failure of Baltimore to adhere to the Court of Appeals’ mandate begins with the district court commissioners. These commissioners are only required to be college graduates, have little or no formal legal training and yet they are tasked with the immense responsibility of determining whether a defendant stays in custody or goes home to face the charges. Commissioners are also given the power to issue arrest warrants on civilian charging documents, and often do so without ever considering the charges could be untrue and motivated by spite and vengeance. Each day dozens of innocent people are arrested on charges supported by little or no corroborating evidence, and then are rubber stamped with a no bail by commissioners.

After a court commissioner denies bail the defendant will sit until the next business day when he or she will go before a district court judge for a bail review. In Baltimore City agents from pre-trial services will first speak to the judge. These agents do very little background research on the defendant and absolutely no research about the pending case. Often pre-trial will wait until an hour or so before the hearing to try to confirm the defendant’s living situation. The result is typically pre-trial giving the same recommendation as the commissioner, which sadly again is to hold without bail. The Assistant State’s Attorneys who conduct bail reviews at the Wabash or Patapsco Avenue district courts typically do not take a closer look into the facts surrounding the arrest either, which is a huge problem not just in Baltimore City, but the entire state. At the very least all civilian criminal complaints should be reviewed by a trained attorney. It is simply too easy to have someone falsely arrested in Maryland, and this absolutely needs to change.

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Published on: May 23, 2018

Maryland Reports Largest Prison Population Decline

By Benjamin Herbst

The national prison population continues to decline, and for the first time in almost fifteen years the total number of inmates dipped below 1.5 million. Last year Maryland lead the entire nation with a dramatic 10 percent reduction in prisoners, which brought the state inmate population down almost 2 thousand to a total of around 18 thousand. While the simplest explanation for the decline is the passage of the Justice Reinvestment Act, a closer look reveals a variety of factors at play.

The Justice Reinvestment Act or JRA was a groundbreaking and massive piece of legislation that sought to reduce money and manpower dedicated to jailing defendants, and to divert these resources to treating and rehabilitating convicted defendants. The JRA eliminated harsh mandatory sentences for repeat drug offenders convicted of non-violent offenses such as possession with intent to distribute narcotics. The maximum penalty for possession of CDS not marijuana was also lowered to one year, which eliminated the possibility of a prison sentence for drug possession. While most state correctional inmates are serving the original sentence handed down by the judge, a large portion are doing time for violating their probation. Lawmakers became aware that the sentences handed down for probation violations were getting out of control, and used the JRA to do something about it.

Each day dozens of defendants plea out to large suspended sentences in order to be released from jail, and many end up back in court on a violation. Some of these violations are extremely minor, and could be avoided by more patient probation officers. In the past defendants faced years in prison for extremely minor violations, but since the JRA went into effect there are now limits on the sentences handed down for these so called technical violations. The limits are not binding on the judge, but are certainly persuasive when it comes to sentencing a probationer for a positive drug test, failing to complete treatment or not paying restitution.

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Published on: May 15, 2018

Supreme Court Clears Path For Maryland Sports Gambling

By Benjamin Herbst

Back in March the Maryland House of Delegates passed a bill that would place legalized sports gambling in the hands of voters come November. At the time wagering on sports was effectively prohibited under federal law in almost all states, but Maryland lawmakers had expected the day to come when the Supreme Court would put an end to the illogical ban under the Professional and Amateur Sports Protection Act (PAPSA). That day finally came yesterday when the nation’s highest court declared PAPSA unconstitutional by a vote of 6-3. We won’t bore our readers with the technical nuance of the ruling, but a brief explanation should be helpful to those not inclined to tackle the 30 page opinion. We will also comment on the expected impact of this opinion here in Maryland, which to put it plainly will be enormous.

Yesterday The Supreme Court reiterated that it is not the business of the federal government to regulate the way state governments regulate their citizens. PAPSA did not make sports gambling illegal under federal law, and in fact wagering on sports has never been a specific federal crime. Rather, PAPSA prohibited states from establishing their own sports wagering industry by allowing the Attorney General and individual sports organizations to bring legal action against anyone operating sports gambling business outside of Nevada. The Court basically told federal lawmakers that if they want to make gambling illegal then go ahead, but if not then states have the authority under the 10^thAmendment to make the decision for themselves.

Sports betting is now legal in all 50 states (or more accurately is not prohibited under federal law in any state), so what will the impact be in Maryland? As usual we’re starting off a little late to the game, as neighboring West Virginia has already passed sports gambling legislation and Delaware and New Jersey sports books will be up and running in no time. But at least some of our lawmakers had the wherewithal to anticipate the SCOTUS ruling and start the ball rolling. There will likely be a referendum on election day this year to officially legalize sports gambling at casinos and racetracks around the state, and there is no doubt that it will pass. By 2019 we could see sports books opening at Laurel, MGM National Harbor, Maryland Live, The Horseshoe in Baltimore and all other licensed gambling establishments. The main impact of legalized sports betting in Maryland will be the millions of dollars to spread around, though the profits may not be as high as people think as less than 5 percent of casino profits in Vegas are attributed to sports gambling. But legalized wagering will bring increased traffic to the casinos and likely boost the already massive $1.7 billion in yearly revenue currently generated by Maryland casinos. Casinos sports books don’t simply generate revenue through bets, as they are entertainment destinations for gamblers and sports fans alike.

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Published on: May 9, 2018

How Does Law Enforcement Recover Stolen Property?

By Benjamin Herbst

Theft is one of the most common crimes in Maryland, with over 100,000 cases reported annually to law enforcement. Most of the reported cases involve valuable personal property, but if you factor in retail theft/ shoplifting and the thousands of other petit cases that citizens don’t bother to report the true number of thefts is likely around a quarter of a million per year. Unlike 10 to 20 years ago, only a small percentage of these cases are motor vehicle thefts. In the early 2000’s and at points in the mid 90’s there were frequently over 35,000 motor vehicle thefts per year, and now this number is hovering around 10,000. The drastic drop in motor vehicle thefts could be a result of new technology, which has made cars more difficult to steal. But the real story is the evolving ability of law enforcement to track the commerce of second hand items.

All vehicles sold in America have unique vehicle identification numbers, which make it difficult to illegally buy and sell stolen cars. Nobody wants to drive a stolen car because it’s only a matter of time before law enforcement finds it. This drastically decreases the value of a stolen vehicle, and in turn makes cars less of a target for thieves. The incentive to steal cars in this day and age is for the expensive parts and the scrap metal, which have no unique identifying information. This creates an obvious problem for law enforcement, as there is no way to know if something is stolen. On the other hand if you can track when, where and by whom something is sold, you may be able to match that up with a reported theft to produce a suspect. This data gathering approach to law enforcement is far from glamorous, but it has been highly effective in Maryland.

Last year Maryland law enforcement officers recovered over $5 million worth of stolen property by analyzing data stored in the RAPID database, which keeps track of all scrap metal, pawn/jewelry, and recycled automotive part transactions around the state. Any licensed business that engages in the second hand commerce of these products is required to keep track of all their transactions, including gathering and entering the identity of persons selling items. The transactions are then recorded and saved into a uniform database that is accessible by all law enforcement agencies. A quick example of the RAPID database in action could go like this: a suspect breaks into a house and steals a laptop and a watch in Anne Arundel County. There are no eyewitnesses and the suspect makes a clean getaway. The same suspect or an accomplice then travels to another area like Baltimore or Montgomery County to pawn the items. The pawnshop employee gladly takes the items in exchange for cash (at a major discount) with the only condition that the suspect produces identification and sign for the items. Two days later the homeowner reports a burglary to police, who come out to the scene and inventory the stolen items. A detective then runs the items through the RAPID database, the transaction pops up and the detective basically has enough evidence right there to seek an arrest warrant for the suspect for theft and burglary.

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Published on: May 1, 2018

What Happens When A Juvenile Is Arrested

By Benjamin Herbst

As a parent there are few things worse than finding out that your child has been arrested and charged with a crime. The initial disbelief is soon replaced by concern, fear and anger, and the worst part is not being able to do anything about it right away. The emotions are compounded when a parent is going through this for the first time, as it’s easy to assume the worst and impossible to know what to expect. The important thing for all parents to remember is that the juvenile criminal court system in Maryland is not designed to punish individuals like the adult court system. For most juvenile cases punishment is secondary to providing the child with guidance and counseling to make sure he or she does not become a repeat offender. It may be a tough road ahead, but most juvenile defendants do not end up with any type of criminal record that could interfere with college applications or future employment as long as their case is handled properly. That being said, the process will be much easier and the rate of success much higher if the parents and the child are informed each step of the way.

Most juveniles that are arrested are charged by citation and released to the custody of their parents. After the arrest the first step is for the child to appear before a juvenile services officer at an intake hearing. The intake hearing is an excellent opportunity for the child and family to avoid going to court, and should be treated seriously. The intake officer has the ability to close the case and issue a warning or place the child on an informal period of probation that typically involves community service. Each of these options will close the case without any type of official criminal court record being created, which is absolutely key to preserving the child’s future opportunities. In some cases the State’s Attorney’s Office or the victim may object to the case being closed, and this will result in the case moving on to the circuit court. The intake officer could also decide to forward the case to the circuit court. If the case is forwarded to the circuit court it does not mean the child will be sent off to a program and it doesn’t mean the child will have a permanent criminal record. To the contrary there is still a strong likelihood that the child will not be subjected to any drastic forms of punishment, and will be totally done with the court system within six months to a year.

When a case is forwarded to court the juvenile will receive notice to appear for an arraignment within a few weeks, though in some jurisdiction the arraignment is cancelled if an attorney files his or her appearance. In the weeks between arraignment and trial or disposition the lawyers from both sides will discuss the case and attempt to come to a resolution. This is similar to adult court, but the time frames are much shorter. Trial will usually be set within one month instead of three or four months. Regardless of whether there is a plea or a trial, juveniles are not found guilty or not guilty, as the term guilty is replaced by delinquent. If a child is found delinquent, he or she may still be able to have the case expunged and in some cases if a proper motion is filed may be able to have the finding overturned. Both of these outcomes will assure that the child’s future is not negatively impacted by the case, which is the ultimate goal.

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Published on: April 23, 2018

How To Survive Probation

By Benjamin Herbst

Probation sounds great when the only other alternative is jail time, but the relief felt when a judge announces a suspended sentence instead of active incarceration can be short lived. Not everyone is built for probation, and while some may breeze through, others are in a constant battle to complete their requirements. Many times it’s the officer who makes the probation term next to impossible to complete, but other times life simply gets in the way. Whether there’s just not enough time to comply with all the requirements or there’s an officer who’s out for blood, probation violations are so common these days that it almost seems as if they outnumber new criminal cases. The odds are stacked against anyone facing a probation violation, so it’s best to avoid one at all cost. While there is no secret formula to successfully completing probation, there are some relatively easy things that can be done to avoid a return trip to court to face a disappointed judge.

Any defendant placed on supervised probation in Maryland must abide by the 9 standard conditions, which include reporting as directed, refraining from illegal drug use and not incurring any new criminal or jailable traffic offenses. The most common violations are missing appointments and catching new charges, but officers will violate a defendant for almost anything, including positive drug tests and failing to pay restitution. The new sentencing laws place limitations on the punishment for technical violations, but unfortunately the most common violations such as failing to report are not considered technical in nature. Again, the best way to beat a VOP is to avoid one altogether, and the best way to do this is to get off probation as soon as possible. Most judges will strongly consider granting an early termination of probation motion provided the defendant has fulfilled his or her obligations and completed roughly half of the term. For example a defendant who is sentenced to 3 years of supervised probation with restitution could conceivably be done with everything at around 18 months provided the fines, costs and restitution are paid, and no prior violations have occurred. If the Court requires drug treatment or anger management, get it out of the way early and file for early termination. If a motion for early termination is not granted the judge at the very least may consider converting the balance of probation to unsupervised, making life much easier and the odds of violation much lower.

Other simple tips include keeping in touch with the probation officer regardless of how annoying it becomes. If you’re running 15 minutes late or can’t make an appointment call ahead and take a screen shot of the call. If you’re falling behind on restitution make any type of payment you can afford. Even if it’s 10 or 20 bucks and you owe hundreds, the Court will at least see effort is being made. Probation officers will rarely go out of their way to make sure you are not slipping up and they are often difficult to get in touch with. In order to avoid a violation you have to be proactive and you have to put up with the BS until it’s over. For the most part probation officers enjoy their power, and may let some minor issues slide if you’re just nice to them. In sum, probation can be annoying and in some cases painful, but the alternative is worse. If you need help having your supervision terminated, or would like to try to convert to unsupervised probation contact attorney Benjamin Herbst at 410-207-2598. Benjamin specializes in Maryland violation of probation representation, and offers free consultations and payment plans. If you have a bench warrant for a violation of probation, Benjamin may be able to have it converted to a summons, and he will appear in court for you when the time comes.

Published on: April 15, 2018

Gun Possession Defendant Acquitted

By Benjamin Herbst

Last week a Baltimore City jury found a 21-year old man not guilty on all counts of gun possession after a circuit court trial, but this type of verdict alone is typically not enough to create news headlines. City prosecutors have recently struggled to earn convictions for gun possession cases due in large part to mistrust of city police offers in the aftermath of the gun trace task force scandal, and an acquittal for a possession charge is hardly out of the ordinary. What made this result newsworthy is the fact that the lead arresting officer is now the commissioner of the Baltimore Police Department.

At trial the commissioner took the stand and testified how he pulled a vehicle over, in which the defendant was a passenger, for traveling with a broken headlight. According to the acting commissioner, upon the vehicle coming to a stop the defendant immediately took flight. As other officers gave chase the commissioner checked the glove box and allegedly located a handgun. The problem with the state’s case was that the only evidence that the gun belonged to the defendant was the testimony of the officers. Neither the commissioner or his fellow officers had their body cameras activated at the time of the stop, and none provided an adequate explanation for this inexcusable lack of evidence. Further, the commissioner failed to photograph the firearm in the place it was alleged to have been recovered, and the evidence was never submitted to the crime lab for fingerprint or DNA analysis.

In a case like this, where the only evidence of possession is the word of police officers, prosecutors try to convince the jury that it’s a simple open and shut case. They introduce the gun as evidence and sometimes even allow the jurors to hold it (albeit secured in an evidence box). The state will tell the jurors they’ve seen the gun and heard the testimony and the rest is just a distraction. Fortunately for defendants our justice system places a higher burden on the state, and thankfully most jurors take their job seriously, and hold the state to this burden. Jurors can’t simply be expected to believe a police officer simply because he or she comes to court with a badge and a uniform or shirt and tie. This is not to suggest that physical evidence linking the defendant to the gun or drugs at issue is required, but in cases where this evidence is readily available to law enforcement there is no excuse for its absence. In this case officers failed to have their body cameras activated, failed to preserve the crime scene with photographs and did not even consider submitting the gun to the crime lab for print or DNA work. Each of these failures came without justification or explanation, and therefore the jury got it right. Proof beyond a reasonable doubt means that the finder of fact must be sure that the defendant did what the state alleges, and even seasoned officers must be held accountable for sloppy police work. Decades of experience and smooth demeanor on the stand are no replacement for cold hard evidence, and it’s reassuring to know these jurors agreed.

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Published on: April 8, 2018

Prostitution Stings Widespread In Maryland

By Benjamin Herbst

Conducting prostitution stings was once a practice limited to a few select police departments, but in the last few years numerous Maryland law enforcement agencies have joined the fray after the internet has made prostitution more accessible to the average person. Traditional prostitution stings consist of an undercover female police officer hanging around in areas known to be hotbeds for this illegal activity. Undercover officers are always flanked by a team of officers in unmarked cars close by, who arrive in seconds once a “take down” signal is relayed. These operations were once common in urban areas such as Baltimore City but they are tedious and possibly dangerous endeavors for police. Assigning undercover officers to walk the streets of high-crime areas creates an environment that is far from controlled. On top of that vice teams could spend hours searching for Johns without any takers, as high prostitution areas are virtually nonexistent after being replaced by online the marketplace. Rather than spend an entire day in the street searching for solicitors police departments developed plans to have the Johns come to them, and in turn arrest numbers have increased.

Anne Arundel County was one of the first departments to aggressively combat online prostitution after fielding numerous complaints from hotels in the BWI region. These hotels began to notice activity that was consistent with sex commerce, and in response police began to set up fake online profiles for escorts in online classified websites such Backpages. The fake profiles aimed to mimic real profiles with seductive pictures and slang phrases. Like real profiles the fake ones never actually said specifically what was for sale or how much it would cost, as the vague language was used to dispel any fears that cops were on the prowl. After posting the fake ads police set up shop in the same hotels where the complaints originated, and waited by the phone for calls or texts. Police didn’t end up waiting long as Johns showed up at pre-determined rooms where an undercover female officer was waiting to negotiate a deal if one had not already been reached via text. In some cases the female officer would wait until money was produced before giving the take down signal to a group of officers stationed in an adjacent room, but other times the undercover would send the cavalry in earlier. Either way, the result was the same, as the support team basically arrested anyone who showed up at the room regardless of whether a deal was verbalized.

Anne Arundel County Police made hundreds of arrests at area hotels using fake Backpages profiles, and they continue to conduct these stings. In the last few years other Maryland police agencies such as Prince George’s County police and Howard County police have started to conduct the same stings and these departments have showed no sign of discontinuing this effort. A person that shows up in response to a fake Backpages at can expect charges for solicitation and assignation, and often police include multiple counts of each. The multiple counts represent each time police perceive that an offer and acceptance for sex takes place, but the state will typically only prosecute one of these counts. Howard County police have been known to charge Johns with disorderly conduct as well, though this charge is definitely a long shot in the courtroom. There are also instances where Johns have touched the undercover and been charged with 4^thdegree sexual offense. Fourth degree sexual offense is a misdemeanor with the same maximum penalty as solicitation, but it is a far more serious offense with potential consequences including registering as a sex offender. While it would be difficult to prove this charge in a solicitation case it nonetheless raises the stakes, and makes it all the more important to hire an experienced and skilled lawyer.

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