Criminal Defense Lawyer Blog

Published on: February 1, 2016

Crime Stopper Tip Produces Large Baltimore Heroin Bust

The Baltimore Police recently announced the completion of a fairly large heroin bust, which led to two arrests and the recovery of drugs, cash, and a firearm. This particular bust was not the product of a long-term police investigation, but rather it was based on a tip from a concerned Greenspring Avenue neighbor in the northwest part of the city. Metro Crime Stoppers received the tip and relayed it over to the police for further investigation. Officers staked out the home of the alleged drug dealer, and then followed him as he drove away. A short time later cops made a traffic stop of the suspect’s vehicle, and conveniently had the K-9 unit on standby ready to conduct a drug sniff. After the dog hit a positive on the car the man was taken into custody while the police sought a search warrant for his home. The warrant was signed and upon executing the search police found 4 kilograms of heroin valued at upwards of $400,000. State and local police officers typically use the street value of the drugs in their reports and press releases, which is based on the optimum profitability achieved by selling small quantities. City police officers also seized $80,000 cash and a stolen handgun from out of state. There is no final word on whether the dealer will be charged in Baltimore City, or whether the feds will take on the prosecution.

This recent drug bust comes at an interesting time for crime fighting in Baltimore City. The police department has consistently stated a desire to focus their efforts on combatting violent crimes such as robbery, assault, and murder. The violent crime rates in the city are alarmingly high and have shown little signs of improving. On the other hand there is no chance the police would fail to act on a large-scale drug tip. These busts generally create positive news headlines for the department, while at the same time taking well funded and often well armed criminals off the street.

Anonymous tips do not always pan out and are sometimes an invitation for the police to violate a person’s rights, but it seems that this particular case was handled by the book. It is always suspicious when cops are performing surveillance one minute and the next are conducting a traffic stop with a K-9 unit on hand. But these so called pretextual stops, where a driver is stopped for a minor (or made up) traffic violation for the sole purpose of advancing an unrelated criminal investigation, are legal under the Supreme Court’s interpretation of the Constitution. The only requirement is that the traffic stop be legitimate, which obviously gives police way too much leeway to see things like a suspected drug dealer “rolling through” a stop sign, making a right on a red arrow, or going 11 over the speed limit. But challenges to the traffic stop will usually fall on deaf ears on the bench, and as long as cops wait for a search warrant the evidence will usually be held admissible. Police are well aware that suspects are most vulnerable when they are on the road due to numerous automobile exceptions to search and seizure rights. This is why many of the largest drug busts begin as a simple traffic stop.

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Published on: January 26, 2016

Baltimore Police Patrol Snowy Streets In Humvees

By Benjamin Herbst

Although crime and calls to service were down throughout Maryland during the historic snowstorm, police and firefighters in Baltimore City were still well prepared to respond if called upon during the blizzard. The National Guard supplied both agencies with military style Humvees, and as it turned out they were put to good use. The city fire department was called to assist with a deadly residential blaze, and was aided by a snowplow in arriving on scene. In addition to patrolling the snow packed streets in marked and unmarked SUVs and the occasional Humvee, the police department was also forced to respond to a few crime scenes. During the early morning hours last Saturday, right in the heart of the record-breaking storm, there were multiple break ins including five reported pharmacy burglaries in the Baltimore area. Police made one arrest in a food store burglary, as officers allegedly observed two suspects climbing out of a store window through the blinding snow while on patrol at 3:30 a.m. One of the suspects vanished into the whiteout, but the other was arrested and charged. Unfortunately for the local business owners there were some who saw the epic blizzard conditions as an opportunity to carry out a quick score, which would theoretically be met with less resistance. Police currently have not made arrests in the pharmacy burglaries, and it is unknown whether they have any suspects at this point.

Pharmacy burglaries have become increasingly common around the state, and especially in the Baltimore area. The pharmacies are not targeted for their cash, as it is rarely stored on the premises. Many transactions are paid with credit card or billed directly to the insurance companies, which is the reason why we rarely see a pharmacy being help up in a robbery. Rather, burglars target pharmacies for their valuable inventory. The pills kept in even the smallest independent pharmacies often have aggregate values exceeding $250,000. And while there is little street value for much of the inventory, the narcotics and anti anxiety medications such as Xanax can sell for thousands on the street. The chain pharmacies such as CVS and Walgreens are more secure, and the pharmacy is typically located in the back of a larger storefront. Some are open 24 hours and have security on site. But many of the smaller, independent pharmacies are not protected in the same manner. These shops are susceptible to break ins, and can have their narcotics targeted even if they are placed in safes or locked cabinets during the night. The drugs can be hard to identify though, and unless it’s an inside job the burglar will typically need extra the time to sort through the inventory. This is probably why the snowstorm produced five pharmacy burglaries in just one night, as the perpetrators assumed the weather would give them the necessary time cushion to locate their plunder. We will follow these snowstorm burglaries and may post a follow up article if the cops happen to make an arrest.

Benjamin Herbst is a Maryland burglary defense attorney who handles cases in all counties and in Baltimore City. Contact The Herbst Firm at 410-207-2598 for a free consultation about your case.

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Published on: January 21, 2016

Legislature Overrides Governor’s Paraphernalia Veto

By Benjamin Herbst

Last spring we wrote about the illogical decision of our governor to veto a bill that cured a glaring inconsistency from last year’s marijuana decriminalization law. The now famous decriminalization statute failed to address the possession of marijuana paraphernalia, which until today remained a criminal offense despite the fact that possession of the pot smoked with it became a civil infraction. Senate Bill 517 attempted to fix that inconsistency by specifically stating that the drug paraphernalia criminal laws do not apply to marijuana drug paraphernalia. This bill also raised the fines for smoking pot in public and while driving to $1,000, up from $500. But the governor, clearly unhappy that the legislature failed to make smoking in public and while driving a criminal offense, vetoed the bill and thus the paraphernalia inconsistency remained. Those in support of the veto, such as the Baltimore County State’s Attorney, urged the legislature not to override it by invoking the classic “it puts your children at risk” argument. The county prosecutor hypothesized about a Maryland where smoking pot on playgrounds and while driving on the beltway could become commonplace. But the legislature saw through these agenda driven arguments, and did the right thing by overriding the veto.

As a result of today’s Annapolis override small amounts of marijuana plus the plastic bags, glass pipes, or rolling papers used with it are officially decriminalized. Police will still be able to charge public pot smokers with a hefty $1,000 fine, and they will also be able to conduct a traffic stop for the purpose of writing one of these tickets to the ever so scarce non-impaired pot-smoking driver. For now the mudslinging between the governor and some pro cannabis lawmakers will cool down, but this should in no way be considered a truce. The governor and the few socially conservative politicians left in the state will still likely attempt to push laws criminalizing public pot smoking. But these efforts will be met with an increased amount of opposition, as polling shows that the majority of Maryland residents now prefer additional relaxing of state marijuana laws not making them stricter again. Local politicians will be reluctant to focus much attention on making pot laws stricter; especially considering the developing political story on the Eastern Shore where a congressman may have jeopardized his political career by crusading against legalized marijuana in Washington D.C. This being a story that may warrant a post in the near future.

The Blog will continue to follow new criminal law and marijuana proposals coming out of Annapolis as the legislative session begins to ramp up. In the early stages of the session the topics generating the most attention are the veto overrides, but we do not expect any to be as newsworthy as the paraphernalia veto. Yesterday the house voted to override a veto on a law that gave convicted felons their voting rights back after being released from prison, and a vote to override the governor’s veto of a long overdue criminal forfeiture reform bill will take place sometime in the near future. Readers should expect an article on this issue within the next few weeks.

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Published on: January 15, 2016

Appeals Court To Decide Major 5th Amendment Issue

By Benjamin Herbst

The Special Court of Appeals has agreed to hear arguments on a major 5^th Amendment issue stemming from the Baltimore City trial of the main defendant in the Freddie Gray case. In doing so, Maryland’s second highest court also ordered that the circuit court postpone the trial just hours before jury selection was set to commence. Oral arguments are set for the first week in March, allowing the Attorney General and the defense attorneys time to respond to each other’s legal briefs. The issue up for debate is whether the first defendant, whose case is still pending after a mistrial was declared, will be compelled to testify against one or more of the co-defendants. Under normal circumstances a defendant with pending charges would never be required to testify in any matter related to those pending charges. But the government is attempting to argue that their case is far from ordinary, and that the first defendant should be forced to take the stand against his former fellow officer.

The right to be protected from self-incrimination is one of the foundations of our criminal justice system, and “pleading the 5^th” is one of the few legal concepts that comes to life as often in real cases as it does in Hollywood courtroom dramas. But in the case of the first officer, whose case resulted in a mistrial, the government is arguing there would be no self-incrimination implications should he be forced to testify against the other defendants. The government offered use immunity to the first officer, which means that they promised in writing to refrain from using any of the testimony against him at later time. Therefore the Attorney General will argue that there is no possibility that the officer’s testimony could get him into more trouble. This argument was compelling enough at least for the Baltimore City Circuit Court judge to buy, but don’t expect the appeals courts to be convinced as easily.

The defense introduced two main rebuttals to the government’s immunity argument. The attorneys argued that if the officer’s testimony is even slightly different the second and third time around he could face perjury charges, and they called attention to the numerous times that prosecutors called the first officer a liar during the December trial in support of this argument. The defense lawyers also suggested that even if the officer is eventually acquitted in the city circuit court he could still face federal charges. Per Department of Justice orders, federal prosecutors have been monitoring this case and were seen in court throughout the trial. The feds have made no such offer of immunity, and theoretically could use every bit of compelled state court testimony in a federal prosecution. While this seems like the stronger argument of the two, the shear historical strength of the 5^th Amendment is perhaps the government’s greatest challenge to compelling the officer’s testimony. Ordering a defendant with a pending criminal case to testify against a co-defendant would be a direct shot at the 5^th Amendment, and the implications would run contrary to decades of case law upholding the right to remain silent. The circuit court judge has a valid desire to move theses cases along, but the appeals courts will look at the bigger picture, and a ruling that undermines the constitutional protections afforded by the 5^th Amendment is unlikely.

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Published on: January 10, 2016

Juvenile Services Employee Pleads Guilty To Defrauding Government

By Benjamin Herbst

This past week a former juvenile justice worker from Bowie pled guilty to three felony offenses in connection with a $42 million scheme to defraud the government. The scam involved the theft of personal identification information that was used to file fraudulent tax returns for profit. The leader of the ring, a former barber shop owner from Capital Heights Maryland, pled guilty back in 2013, and the United States Attorney’s Office is still in the process of prosecuting an estimated 130 participants. Those involved with this enormous scam filed over 12,000 fake federal tax refunds that generated tens of millions of dollars of illegal plunder. The Bowie man who pled guilty on Tuesday was accused of stealing the personal identifying information of over 600 young adults. The man obtained this information through his employment with the Washington D.C. Department of Youth Rehabilitation Service, where he worked from 2005 to 2013.

Federal prosecutors filed charging documents a few months ago, and it didn’t take long before a plea agreement was reached. The former employee entered guilty pleas for defrauding the government in count 1, filing a fictitious or false claim in count 2, and identity fraud in count 3. In addition he admitted to attempting to cause the government to lose upwards of $4.4 million, of which about $2.4 was actually paid out. Sentencing is set for this spring, where the defendant faces a maximum of 30 years in prison if all counts are run consecutive. Identity fraud is the most serious of the three charges, carrying a maximum penalty of 15 years. Based on the fact that the former D.C. employee entered a plea with the government he will likely be sentenced to much less than the maximum, and he will pay an agreed upon restitution value of about $2 million. But the federal judge will have the ultimate say at sentencing, and there is no doubt that the court will pay specific attention to the fact that the defendant stole personal information from the young people he was hired to help. While the IRS may not be the most sympathetic victim, the juveniles and young adults that were targeted by the defendant face the possibility of financial harm that could be extremely difficult to overcome.

This case should be a cause of concern for all government agencies that have personal identifying information readily available to employees. This is especially true with respect to agencies that deal with the criminal justice system. Almost every police report or booking report has a defendant’s social security number in addition to other personal identification information easily visible. While this information is redacted in the public record, the inter agency files rarely take such measures. These government agencies must be vigilant when it comes to monitoring their records and their employees.

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Published on: January 3, 2016

Strict Maryland Laws Creating Market For Gun Trafficking

By Benjamin Herbst

Maryland has always been relatively tough on guns, and in the last two years new firearm legislation has made it one of the toughest states in the country. But whether these strict laws actually work to curb gun violence is an issue that will be debated for years to come. The Firearms Safety Act has only been around for a year and a half, so it is impossible to make sweeping conclusions on its effectiveness yet. One thing is for certain though; the strict gun laws create a lucrative market for out of state gun traffickers, which has become a priority for the local United States Attorney’s Office. This past week federal authorities announced the conclusion of a seven-month investigation that has eliminated a gun trafficking ring operating from Tennessee. The investigation yielded seven arrests, with three of the suspects being previously convicted felons. This particular group would allegedly purchase various guns in Tennessee with the intent of selling them for a profit in Baltimore. Now, each faces up to 10 years in prison for illegal gun possession and additional time for conspiracy charges.

The federal prosecutor’s office boasted that this bust put an end to an operation that flooded Baltimore with upwards of 30 guns per week. While this is certainly an achievement for law enforcement, according to the ATF only 39 of the some 5,000 seized guns in Maryland actually came from Tennessee. Over 300 were traced back to Pennsylvania, and about 500 came from Virginia. In total about 2,200 seized guns originated from outside states, prompting some to argue that overly tough state gun laws simply create an illegal market for firearms trafficking. If the gun stores can’t sell certain guns legally then those who really want them will look to purchase them illegally. Illegally purchased firearms present law enforcement with a whole new set of problems because they cannot be accurately traced, and they often fall into the hands of people that would otherwise be prohibited from purchasing a gun.

State officials who support tight gun control would argue that you have to start somewhere, and it is unwise to base your own policy decisions on what your neighbors are doing. At the same time the regional climate with relation to gun control should always be a consideration when drafting new legislation. Especially legislation that is as sweeping as the firearms safety act. In addition to creating a larger market for illegal gun trafficking within our state’s borders, the act is also affecting the state’s economy. Beretta USA has been manufacturing the standard military issue pistol in Maryland since the 1980’s, but now that 15 round magazines have arbitrarily been declared illegal here the company is closing the factory and moving out of state. The firearms safety act now prohibits law-abiding citizens from purchasing a handgun that is a standard issue side arm for the Army. The proponents of the act argued that a private citizen has no need for a handgun with a capacity of more that 10 bullets, and maybe they’re right. On the other hand the cost benefit of an outright ban of this type of handgun doesn’t seem to add up. We’re seeing a spike in illegal gun trafficking and a large factory with hundreds of jobs moved out of state. But are we safer? That remains to be seen, and the Blog will post a follow up article in the future on this topic so stay tuned.

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Published on: December 23, 2015

Medical Marijuana Likely To Debut In 2017

By Benjamin Herbst

Frustration is mounting for those awaiting a final verdict on the fate of their medical marijuana grower and distributor licenses. The original timeframe called for the commission to hand out the licenses this coming January, but as we posted a month ago this was optimistic due to the unexpectedly high number of applications. While it was hoped the delay would only last a couple months, officials are now claiming that decisions will not become final until the summer. The minimum six-month delay has all but eliminated the chance of medical marijuana being available to Maryland patients in 2016, and now commission has declined to give an estimated timeframe for pretty much anything regarding the program. This lack of information seems unfair given the strict deadlines and financial burdens all the applicants are facing. One thing we do know is that the typical growing cycle for indoor cannabis is 4-10 months, which means it will take an average of 7 months from the time the first seeds are planted until the product will be ready for distribution.

While adding half a year for production to the commission’s expected summer application timeline means we’re at least a full year away from medical marijuana, there still may be more unforeseen obstacles. A couple months back the Anne Arundel County government was in the news after the executive threatened to ban local medical marijuana operations. This dispute was later settled by the county council, but now Calvert County has joined as another locality that may spar with the state over marijuana policy; its board recently voted in favor of requesting state lawmakers allow certain localities to ban medical cannabis. Calvert County officials cite concerns that their government employees are at risk federal of prosecution as long as marijuana is an illegal controlled substance under federal law. This is the same tired argument that anti-marijuana activists have been relying on for years, and is completely disingenuous. While it is technically possible that this scenario could take place, it’s not going to happen and anyone who believes it could happen is simply using it as a ploy. There is simply no chance the DEA would is start arresting local government employees for working on some aspect of state sponsored medical marijuana. The current administration has already vowed to stay away from state sponsored marijuana, and even the most socially conservative presidential candidate wouldn’t get involved.

The anti medical marijuana localities will eventually lose out to the state legislature, but their pushback could cause further delays for the program. If any of these quarrels end up in court there could be months of litigation while ailing patients continue to suffer and bona fide investors continue to hemorrhage money. Architects of the medical cannabis program want the state to remain unified on this issue, with grow operations and dispensaries spread evenly across Maryland. Let’s hope this can be accomplished by the start of 2017. The Blog will continue to follow this issue as always, and we’ll post a follow up article in the near future to keep our readers updated.

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Published on: December 18, 2015

DUI Laws Scrutinized Following Officer’s Death

By Benjamin Herbst

A Montgomery County police officer was killed this past week when he was struck from behind by an alleged drunk driver at a sobriety checkpoint. The young officer’s tragic death has renewed debate whether Maryland’s DUI and DWI laws are strict enough, as alleged drunk driver had multiple prior alcohol related driving offenses on his record. Many have question whether he should have legally been behind the wheel in the first place. Montgomery County spends a great deal of resources to combat DUI, and the drunk driving awareness signs along 495, also known as the Capital Beltway, aren’t just for show. County and state police officers often patrol that stretch of road and others near it to specifically target impaired drivers in areas such as Bethesda, Rockville, and Gaithersburg. These efforts have paid off with upwards of 4,000 drunk driving arrests per year, but it only takes one tragedy to raise the question as to whether law enforcement efforts are enough, or if assistance is needed from lawmakers.

Unlike three of our bordering states, Maryland does not require first time offenders convicted of an alcohol related traffic offense to install an engine interlock device on their car. These devices prohibit a driver from starting the engine without giving an alcohol free breath sample. Alcohol on the driver’s breath will prohibit him or her from driving, and could also trigger a probation violation. Some also disagree with the general statewide trend that most first time offenders walk out of court with probation and fines rather than jail time or intensive treatment. But these complaints are not realistic, as Maryland is about average when it comes to the strictness of its drunk driving laws. In some states such as New Hampshire and Ohio a first offense for an alcohol related driving violation does not even carry the possibility of jail time. In Maryland a first DUI can carry as much as a year in jail, with is on par with stricter states such as Florida. And depending on the time frames a second offense can also carry a mandatory minimum jail sentence, which many judges around the state are inclined to exceed.

Anti drunk driving organizations are some of the most powerful lobbies in the country, with groups such as MADD and SADD working tirelessly increase the strictness of DUI laws. This is a unique phenomenon, as there are almost no organizations that exist to combat common crimes such as robbery, assault, and theft. We are only recently seeing the emergence of similar organizations that exist to combat domestic violence. There is clearly a concerted effort to battle drunk driving, but as long as bars and restaurants continue to serve everyone’s favorite drinks, and liquor stores keep their shelves stocked it will continue to be an uphill battle. It hardly serves the greater good to throw first time DUI offenders in jail, and engine interlock devices will never be able to prevent a convicted drunk driver from simply getting behind the wheel of another car. Lobbyists and law enforcement should continue to focus on education, especially of teenagers and young adults about the dangers of impaired driving. These groups should strive to develop innovative ways to get their important message across because the classroom speeches and presentations unfortunately do not always strike a chord. The Blog will follow the emergence of any DUI and DWI related proposals in the upcoming legislative session, and we will certainly post an article if anything significant comes out of Annapolis.

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Published on: December 10, 2015

Botched Towson Robbery Results In Deadly Shooting

By Benjamin Herbst

Two men recently attempted to rob a popular downtown Towson liquor store and one lost his life as a result. The attempted robbery occurred around 7 p.m. Monday night in the middle of Baltimore County’s capital city, and just blocks from the district and circuit courthouses. One of the two men was armed and pointed his handgun directly at the store clerk’s head while demanding money. What the robber didn’t realize was that the clerk was armed as well, and unfortunately for all those involved the clerk was forced to use his firearm. The 68 year-old clerk shot one of the robbers multiple times in the torso before both attempted to flee the scene on foot. One suspect got away and is still at large, while the other collapsed shortly after exiting the store. This suspect, a 25 year-old man from Baltimore eventually passed away from his injuries.

Baltimore County Police are currently investigating the incident, but the liquor store is back open for business and is no longer and active crime scene. After the police have concluded their investigation they will forward the case on to the state’s attorney’s office where a decision will be made whether to pursue charges against the clerk. It seems like a forgone conclusion that the prosecutor’s office will deem this an incident of self -defense, and the odds of the case even going to a grand jury are slim to none. Shop owners and employees are treated the same as homeowners and residents under the Maryland laws for possessing a handgun. No license is needed as long as the firearm is within the property of the business, and the person who possesses the gun is a bonafide employee or agent.

The question of whether the clerk was legally justified to shoot the robber is a basic self-defense inquiry. If the clerk reasonably feared for his life then he is justified to meet deadly force against deadly force. A handgun is by definition a deadly weapon, and pointing a gun at someone in a threatening manner is considered the use of deadly force regardless of whether a verbal threat to shoot was made. The clerk’s description of the events combined with the fact that police found a gun on the deceased would meet the requirements for the justifiable use of deadly force. The incident was likely captured on video that police and the state’s attorney will view, but video does not seem necessary to exonerate the clerk in this case. The deceased had been convicted of armed robbery and carjacking back in 2007, for which he served less than 10 years of a 20-year prison sentence. He was not out of jail for long before he violated his probation, and was scheduled for a VOP hearing in the Baltimore City circuit court in April. While this information is not exactly relevant to the state’s attorney’s decision with respect to the store clerk, it is definitely not something that will go unnoticed.

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Published on: December 4, 2015

Prince George’s County Cop Found Guilty of Assault

By Benjamin Herbst

A jury recently found a former police officer guilty of multiple violent crimes after a two-day trial in the Circuit Court for Prince George’s County. The shamed officer was indicted for an incident that occurred in May of 2014, when the officer questioned a man for sitting in a parked car. The man was parked in front of his Bowie home along with his cousin, and exited the vehicle after exchanging words with the officer. As the man was walking toward his front door the former patrol officer pulled out his firearm and ordered the man back in the car. The officer then pointed his gun at the victim’s back as he directed him to the vehicle. After the cop pushed the victim they turned to face each other, and at this time the cop had his gun pointed directly at victim’s head and then with the barrel mere inches from his face. The victim was then arrested for disorderly conduct, a case that was dismissed by prosecutors six months later.

The verdict came down earlier this week, and shortly thereafter the county police department release video of the incident, which was filmed on a cellphone. After viewing the video it was immediately apparent why the twelve jurors found the officer guilty of all the serious crimes for which he was charged. The charges included first degree assault, second degree assault, use of a handgun in a crime of violence, and misconduct in office. First degree assault is a felony that carries a maximum 25 year sentence, while second degree assault is a misdemeanor with a 10 year maximum. Misconduct in office is a common law crime with no specific maximum penalty. While each of these three crimes certainly carries severe punishments, it is the misdemeanor use of a handgun during a crime of violence charge that will carry the most weight. A conviction for this offense carries a mandatory minimum 5-year prison sentence that may not be suspended. In addition a defendant sentenced under this statute is not eligible for parole. Sentencing is set for early January, and will likely include a term of probation after expiration of the mandatory prison time.

During a press conference this week the police commissioner for Prince George’s County condemned the officer’s actions, and implored the public to refrain from passing judgment on the other 2,000 plus officers in the department. He stated that this was a criminal act of a single man and will not be tolerated in any way. While the officer is technically still with the department, his firing is a mere formality at this point. He has been suspended without pay since the indictment came down, and the only thing preventing his termination is the administrative process that government employees are afforded before being fired. This is certainly a busy week in Maryland for police misconduct cases, as Baltimore City police officer is currently in trial for his role in the death of Freddie Gray. The Blog will continue to follow both of these cases and may post a follow up article in the near future.

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