A drug charge was dismissed today because the search of the car that found the drugs was not conducted properly. There was one Body Cams. The first officer picked up the box with the drugs and placed... it back in the car. The second officer did not have a Body Cam and claimed he found the drugs in "plain view." He was unaware of the Body Cam.
The search of the box was not supported by any legal theory and could only be justified if the drugs were in plain view. They were not and the charge was dismissed. The Body Cams generally provide a good picture of what is going on. The officers do not always level it correctly but that takes time. In this case since the Body Cam was on an officer who looked through the car, it was directed at the objects in the car. The prosecutor had not reviewed it and when I pointed it out, she understood the drugs were not properly seized and did the right thing.
DUI and DWI
Breath Test Not Admissible
May 03, 2017
OUTCOME: Breath Test Inadmissible
The police use their Body Cams at all times when they are in the presence of the accused, and that includes the police station. I had 2 hours of Body Cam video sent to me two days before trial last we...ek to review. There is a required procedure for the admission of a breath test. At the one hour and forty minutes mark of the two hours, the police violated the protocol. I notified the prosecutor of the exact location on the tape and she confirmed it. The test was not admitted in the case. Too many lawyers do not review the Body Cams as they apparently "don't charge enough" to do all that work. They just want to collect a fee and plead the client guilty. It happened to someone 2 weeks ago who called to complain about how a lawyer handled her case. He never looked at the Body Cam. My relationship with prosecutors is excellent and I called the trial prosecutor who had never watched it either. She pulled it up and I "watched" it over the phone- I could hear everything and she narrated the movements of the accused. Because the accused had appeared before a easy sentencing judge, the risk was too great to appeal the case and likely receive a worse sentence on appeal if convicted. The bottom line is the lawyer was too busy to review it, and the accused had to call a second lawyer to find out what the Body Cam showed. That is inexcusable.
DUI and DWI
Harford County DUI Dismissal
Apr 10, 2017
OUTCOME: Dismissed
Friday afternoon I finally said to the prosecutor, as we discussed for the second straight day the DUI case against my client, that we had talked about this case longer than the jury will be out before... finding my client not guilty. He laughed and agreed so this morning the DUI was dismissed. Why did a case that originated in August take until April to get resolved with a dismissal? It is because of the process and policy. My client was asleep on a parking lot when the police woke him up. There was a six pack of beer in the vehicle. There was an empty bottle outside the driver's door and an empty in the six pack. There were 4 unopened beers. My client refused the breath test because his union newspaper (which I had) advised against taking a test. I had evidence that I shared with the State to show that he drank at the parking lot ONLY, and was not drinking before he got there.
I had a receipt and a witness from the pool store where he has his swimming pool water tested a few hours earlier. The Atkinson case that deals with using your vehicle for temporary shelter if you have not gotten drunk and driven to the location where the police find you. Here my client never drank before parking on the lot. I also knew that there was NO WAY a jury would convict him under these facts as they would be instructed on the law and would think it was crazy to prosecute him when there was ZERO evidence that he ever drove after drinking. The Harford County State's Attorney's Office has a "policy" against dropping DUIs. I have had them dropped but it takes a lot of effort to show why it is wrong to try the case.
DUI and DWI
Experienced defense counsel know the officer's routine
Feb 14, 2017
OUTCOME: Dismissed
The importance of police KGA Broadcasts can never be underestimated. My client tells me about his stop and subsequent arrest and I expect I will see the same information in the police report. I have ...had cases with this officer before and know what he does EVERY TIME- offers a PBT. The key to the case is the result of the PBT that he always offers and that my client took. Well guess what? There is no PBT listed in the police report. My client who was not either under the influence or impaired goes nuts. He says the only reason he was arrested was because he never took the alcohol restriction off his driver's license (it could have been removed 2 years ago). The officer told him without the alcohol restriction he would have let him go. My client is so upset and when he sees he is also being charged with a DUI he refuses the breath test at the station.
The PBT is admissible by the defense and I figured it was just above the .02 threshold for a violation of the alcohol restriction. How can I prove he took the PBT, and the fact that it was not recorded in the PBT logs or in the police report means it was at the threshold level. My client tells me that the officer called the station to verify the alcohol restriction AFTER the PBT. Well if the officer had enough for a real DUI he would not even bother with that call and just arrest him and charge him with everything. I get the tape and there is the call with the alcohol restriction question being asked. I take the tape and every single DUI police report I have for the officer and take them to the prosecutor. The probable cause in the case was thread bare because the stop was shaky to begin with. The prosecutor calls the officer and the DUI is dismissed.
Today I am in court and see the officer and the defense attorney approaches me. I tell him the story and read his file over and a PBT was offered. Now the officer has a video EXCEPT he turns the audio off when he is talking to the defendant and turns it on when he speaks to other police. The prosecutor learns about all of this and drops the DUI in that case- I am promised a lunch by defense counsel for my assistance. I thought the video system would end the problem but it has only exacerbated it. Luckily I got the KGA Broadcast tape because without it my client is not going to get a fair trial.
Criminal defense
Handgun Dismissal
Feb 07, 2017
OUTCOME: Dismissed
If you are convicted of possessing a gun on the streets of Baltimore City the State is going to ask that you be sentenced to jail. That is their policy and the judges are not going to be sympathetic t...o anything other than jail. That is a dynamic that 300 murders bring to the Court system. But what if you possessed but didn't really possess it? You better have a Body Cam proving it. We did.
The client's husband comes home and without so much as a hello, she rushes out and gets in his car and drives away. While driving she cannot find a lighter so she reaches in his lunch bag and finds one but also feels a handgun in the bottom of the lunch box. The gun is registered to her husband, but she does not have a carry permit and could not get one because of her previous record. Once at her destination a police officer comes up to talk to her and asks for id. She tells him her purse is in the trunk and she goes to get it. Before opening the trunk, she says, there is a gun in the trunk in my husband's bag. I found it while driving. The trunk is eventually opened and the police take the gun and she gets a cigarette. They ask her about the gun and she says just take it to the station and call her husband to come get it. She is COMPLETELY oblivious to the fact that she has done anything wrong and can be charged. The Body Cam conclusively shows her "innocence."
When they decide to arrest her she flips out and cannot believe it. She says to the initial officer that she did not even have to tell him it was there, and he sneers at her and tells her that is right she didn't have to volunteer that. The second officer apologizes and says he has to follow orders. The District Court prosecutor agreed with me that it was just wrong but said he had to offer 6 months. The trial judge who is a friend of mine would have given her 3 years- his policy.
I request a jury trial and prepare to try the case on the never used argument that the jury can refuse to apply a law in dubious factual situations where it is just not designed to apply. The application of the law would result in an injustice. I was prepared to use this defense in a teenage kiddie porn case where the 18 year old boyfriend of a 15 year old boy had taken a photo of the other's penis. They had been together for over a year. The photo was not disseminated and it was found on the 18 year old's computer in an unrelated matter. One Circuit Court judge did not believe that it could possibly be a crime, but the charges were brought. I told the prosecutor how I intended to defend the case and we resolved it without a conviction or sex offender registration. No one wants kiddie porn unpunished, but that was just not kiddie porn.
In the gun case I ask the prosecutor to review the Body Cam and she does so with her supervisor. She could have thrown the bag away so one of the juror's children could have found it and shot himself or someone else or she could toss the bag in the trunk and have her husband put it in the house when she gets home. The prosecutor and the supervisor both realize that she is "innocent." The police do not protest. The charges are dropped.
Now if you only read the police reports, you cannot truly appreciate her innocence. In fact there would have been no way to avoid a trial. At the trial would she have been as credible as she was on the Body Cam that was running when the incident actually occurred? Maybe or maybe the jury would think she had months to "rehearse." This is the second Body Cam case that helped my client. A complete injustice was avoided. The State's Attorney's Office for Baltimore City is to be commended for doing justice. As a former prosecutor in that office I felt proud that my former office did the right thing despite pubic pressure and media headlines to lump everyone together. One size does not fit all. When the State and the judges are on the same page on most cases without much regard for individual circumstances, justice is difficult to achieve. That did not happen here.
