Evidence

Maryland Court Upholds Officer’s “Pat Down” Search of Defendant

October 23, 2014 | by Anthony A. Fatemi, LLC

The Fourth Amendment protects people from unreasonable searches and seizures. Under established case law, an officer who “pats down” or “stops and frisks” a person must be able to justify the intrusion by pointing to “specific and articulable facts” that, when considered together “with rational inferences from those facts, reasonably warrant that intrusion.” Essentially, the officer must be able to articulate what it was that aroused his or her suspicions in order to justify the search. In such cases, courts will evaluate the reasonableness of the search or seizure in light of the unique circumstances of the case.

Clearly, whether the officer is entitled to conduct a pat down depends in large part on the specific facts. Where appropriate, an individual arrested or charged with a crime may argue that the officer violated his or her constitutional rights and was not justified in conducting the search. In such cases, the defendant may be able to suppress any evidence gathered as a result of that search. If you have been arrested or charged with a crime, it is extremely important to contact an experienced criminal defense attorney who is fully aware of proper legal criminal procedure in Maryland.

In a recent case, the defendant was convicted of possession of cocaine, wearing, carrying, or transporting a handgun in a vehicle (and on his person), concealing a dangerous weapon, and speeding. According to the suppression hearing record, the arresting officer stopped the defendant for driving 58 m.p.h. in a 35 m.p.h. zone. According to the officer, during the stop, the defendant was sitting “statue-like,” staring straight ahead with his hands in his lap. The officer also noticed that the defendant’s two front jacket pockets were “bulging” as if they had something in them. Because of the bulges in the defendant’s pockets and because he failed to make eye contact, the officer decided to obtain information regarding the defendant’s criminal history. He found out that the defendant was on probation for a possession of a handgun in a vehicle charge.

Maryland Court Upholds Conviction of Robbery and Other Related Charges

October 8, 2014 | by Anthony A. Fatemi, LLC

Depending on the circumstances, a defendant charged in a criminal action may be able to assert several different defenses, some of which could result in a reduction of the severity of the charges or an acquittal. In a recent case, the defendant was convicted of robbery with a deadly weapon and multiple related charges. While he raised two defenses, one related to prejudicial hearsay during the trial and another concerning an impermissibly suggestive identification, the court of appeals upheld the convictions. If you have been arrested or charged with a crime, it is extremely important that you contact a Maryland criminal attorney who can review your case to properly respond to the allegations and raise any applicable defenses to protect your rights.

In the case described above, a man and his son arranged to meet the defendant to purchase two cell phones that were advertised on Craigslist. They brought two additional children with them to make the purchase. According to the facts of the case, instead of selling the phones, the defendant told them they were being robbed and pulled a gun out. Defendant allegedly shot one of the would-be purchasers. As the crime was being investigated, the victims identified the defendant as the assailant through photographic identifications. The defendant moved to suppress the identifications in a pre-trial hearing, arguing that the police used “impermissibly suggestive” procedures in securing the identifications. The motions court denied the defendant’s motion to suppress, and he was later convicted at trial of the assorted charges mentioned above.

The defendant appealed his convictions, alleging that the trial court admitted prejudicial hearsay improperly and that the motions court erred in denying his motion to suppress the photographic identifications. The court of appeals rejected both arguments. During the trial, a detective’s testimony improperly referenced certain out-of-court information that connected the appellant to the robbery. The court agreed that it was inadmissible hearsay, but appellant did not move to strike the testimony, nor did he ask for a mistrial. Furthermore, the court gave instructions to the jury that stricken testimony was not to be considered as evidence. The court of appeals concluded that appellant received all the relief that he sought with respect to the inadmissible testimony, and therefore there was no error. Continue reading

Maryland Court Denied Defendant’s Motion to Suppress Evidence

September 26, 2014 | by Anthony A. Fatemi, LLC

There is no question that criminal arrests vary from case to case. But every defendant is entitled to certain protections under the law. And in many cases, the defendant (the person arrested or charged with a crime) may be entitled to raise any number of applicable defenses. Such defenses may address the manner in which the investigation was conducted, while others may actually negate an element of the crime. The facts and circumstances surrounding the arrest are often a crucial part of a case against someone. If you have been arrested or charged with a crime, it is important to contact an experienced criminal defense attorney as soon as possible to ensure that your rights are protected from the very beginning.

When a defendant believes that evidence was discovered illegally or without a proper search warrant, he or she may make a motion in court to suppress the evidence discovered during that search. A suppression hearing will be held to determine whether or not the police conducted a lawful search. In a recent case, the court of special appeals denied the defendant’s motion to suppress evidence, concluding that the officers were justified in conducting a warrantless search of the defendant’s vehicle. In this case, the police obtained a warrant to search the defendant’s house for evidence related to drugs and other paraphernalia. The officers had been watching the defendant’s home and later followed the defendant as he and another person got into a car and drove to a grocery store. The defendant was in the passenger seat.

The officer testified that he knew there was an “open arrest” warrant for the defendant for second-degree assault. As the defendant exited the grocery store and attempted to get in to the passenger side of the vehicle, the officers stopped and handcuffed him. They searched him and found some money and a baggie containing crack cocaine. They drove to the police station, where the officers conducted a search of the vehicle and found a black revolver. The defendant moved to suppress the evidence, arguing that the warrantless search of the car was unlawful under applicable case law, since he was arrested for assault, not for a drug offense. Continue reading

Refusal to Suppress DNA Evidence Does Not Violate Constitution or Maryland State Law

August 8, 2014 | by Anthony A. Fatemi, LLC

The collection, retention, and use of DNA evidence in a criminal matter can raise various privacy concerns. In a recent Maryland case, a homeless man, George Varriale, voluntarily provided his own DNA samples to the local county police department in order to clear himself as a suspect in an alleged rape case. Here, the detective investigating the alleged rape identified himself to Varriale, told him why he was in the area, and asked if he would be willing to sign a form consenting to be searched. Varriale agreed to the search, signed a consent form, and provided DNA samples. While he was cleared of the rape charges, Varriale’s DNA later matched a DNA profile that was associated with an unrelated burglary incident.

Based on this evidence, he was charged with two counts of second-degree burglary, malicious destruction of property, and theft over $1,000, all in connection with a burglary that took place in 2008. Varriale moved to suppress the DNA evidence, which the court denied. Later, Varriale agreed to a conditional guilty plea to burglary in the second degree. After the sentencing phase, Varriale appealed the court’s denial of the motion to suppress, arguing two essential points: 1) by retaining and analyzing his DNA samples after he was eliminated as a suspect in the alleged rape, the police conducted an unreasonable and warrantless search in violation of the Fourth Amendment; and 2) under the Maryland DNA Collection Act, the state was not permitted to retain his DNA once he had been cleared of suspicion in the investigation for which his sample had been taken.

The court of special appeals rejected both arguments and upheld the court’s denial of the motion to suppress. Regarding Varriale’s contention that the police exceeded the scope of his consent to a search, the court concluded that the state had no obligation to obtain a warrant before reexamining the DNA sample that was obtained lawfully. Under applicable case law, the court found that once the state lawfully obtains a DNA sample, retention and later examination of the sample does not ordinarily amount to a search. Next, under the plain language of the Maryland DNA Collection Act, in order to trigger the expungement of DNA records, there must have been a criminal action instituted against the person, and that person must not have been convicted of the crime for which he or she was charged. Here, the court concluded that Varriale had never been charged with the alleged rape, nor arrested for it, and therefore he was not entitled to claim the benefit of the statutory expungement provisions. In coming to this conclusion, the court relied upon the plain language of the state statute. Continue reading

What is a “Dying Declaration” in Maryland?

June 6, 2014 | by Anthony A. Fatemi, LLC

A recent appellate case considered the “dying declaration” exception to the rule against hearsay evidence, among other things. The defendant was indicted for first-degree murder, armed robbery, conspiracy, and possession of a firearm by a person not permitted to have one. Before the trial, he moved to suppress the victim’s identification of him as the killer. The hearing judge suppressed the identification, and the State of Maryland appealed.

The murder victim, Melvin Pate, had identified his shooter to a registered nurse at a Shock Trauma Unit after the shooting before he died. He had been shot in the face and taken to the hospital to be stabilized. A few days later, he was sent to the Shock Trauma Unit in a critical and very unstable condition. His spinal cord was severed in his neck, which left him a quadriplegic. His lung had collapsed, and he was breathing with the help of a ventilator and eating through a feeding tube.

The issue in this case was whether the victim’s identification of the shooter’s photograph counted as a dying declaration exception to hearsay rules. Hearsay is “an out-of-court statement” that is introduced to prove the truth of what is being asserted. Hearsay evidence is not admissible unless an exception applies. One exception applies when somebody is unavailable as a witness and that person is making a statement with the belief of imminent death. This is called the “dying declaration exception.” Continue reading

Late Discovery of Impeachment Evidence in Maryland

April 10, 2014 | by Anthony A. Fatemi, LLC

What happens when a criminal defendant learns that an expert who testified against him does not have the credentials he claimed to have at trial? In an interesting recent case a defendant discovered that a ballistics expert had embellished his credentials after his conviction for first-degree murder, first-degree sexual offense and use of a handgun while committing a violent crime.

The case arose when a woman was visiting her boyfriend’s house. Upstairs her boyfriend and his friend were smoking cocaine. She joined them. Early in the morning the woman told the men she needed to get ready for work. The defendant (her boyfriend’s friend) took out his gun and fired a shot into the floor, asking the boyfriend to give him the cocaine. The defendant hit the boyfriend in the head with the gun and fired another shot.

He tied up the boyfriend and sexually assaulted the woman at gunpoint. When the boyfriend protested, the defendant put him in a closet and continued the sexual assault. When the boyfriend continued to try to stop the assault by getting the closet door open, the defendant hit him again with a gun. Continue reading

Consent to Search for Evidence in Maryland

March 28, 2014 | by Anthony A. Fatemi, LLC

In a recent appellate case a defendant charged with a double murder challenged the evidence used against him on the grounds that it had been obtained through tainted consent. The police learned of the murders when a friend of Seth Aidoo reported he hadn’t seen Aidoo or his girlfriend in a few days. The police went to Aidoo’s home and found his body and his girlfriend’s body in the basement. They were dead.

Aidoo had been stabbed to death and his girlfriend had been shot in the head. The doctor pronounced both deaths were homicides. During the murder investigation it was determined they had been killed January 12, 2009. The detectives also discovered that Aidoo had lived with his wife and her brother and that the wife moved out when they separated. The brother moved shortly after that. The wife, brother and defendant lived together at the time of the murders.

Aidoo lived in a community with access gates controlled by transponders. The brother had gotten a transponder for these gates in March 2008. About two weeks before the murders, the defendant’s Mercedes Benz entered the community using the brother’s transponder. On the evening the murders occurred, the transponder was used again, except with a mini-van. Continue reading

Sixth Amendment Right of Confrontation in Maryland

March 15, 2014 | by Anthony A. Fatemi, LLC

In a recent case, a man was shot and killed in the Malaska family’s front yard. The Malaskas and their neighbors (an unmarried couple) disagreed about their adjacent rural property. The couple used their property as a horse pasture. Both parties claimed they were the owners of trees that were between the pasture and the Malaska property. The man posted a “No Trespassing” sign in that area.

When they saw the sign, some of the Malaskas tore it up and threw the pieces into the man’s front lawn, which led to verbal fighting and a physical fight. As the fight was finishing up, the defendant (a 69-year-old Malaska family member) fired a shot from a rifle. The man’s girlfriend dropped to the ground while the man ran in the opposite direction and another person hid behind a tree. The defendant shot the man in the back and it punctured his aorta, killing him. Someone later testified that he was shouting “Die” and obscenities at the victim when he shot him.

The defendant testified as to a different version of events in which the girlfriend was beating his son with a cane and the man hitting his son with fists. He fired a warning shot because his son was sitting limp with his arms down. This led to one of the men, not the victim, saying “Do you want a piece of this?” and charging him. He claimed the shots prompted the victim to run and testified he didn’t know he had killed the victim. Continue reading

Bill of Particulars in Maryland Criminal Cases

January 25, 2014 | by Anthony A. Fatemi, LLC

In a recent case, the defendant was driving with five others when they came upon a man who was standing in the middle of the road. They swerved to avoid hitting him. The defendant and another passenger came back to the man, who seemed to be drunk. The man came up to the defendant and tried to hug him; the defendant almost knocked him into a car that was passing by.

The other passenger hit the drunken man in the face knocking him into the street. Then the defendant and passenger drove off. A car came by and ran over the drunken man, killing him. The reckless endangerment count was filed using statutory “short form.” This means that it didn’t state the factual basis for the crime.

Accordingly, the defendant asked the State to give him a “bill of particulars” that specified what in the defendant’s conduct constituted reckless endangerment, what the defendant had done to act recklessly, what the defendant had done to create a substantial risk of death or serious injury, and what facts showed the defendant had disregarded this risk. Continue reading

GPS Tracking in Maryland Criminal Cases

January 4, 2014 | by Anthony A. Fatemi, LLC

When the State of Maryland tracks a vehicle with a GPS device attached to the exterior of a car in order to watch its movements, is that considered a “search” under the Fourth Amendment? A recent case that arose from the GPS tracking of a defendant’s car answered that question.

In the case, police officers asked officers in the Repeat Offender Proactive Enforcement Section (ROPE) to help them conduct surveillance on the defendant who they believed was involved in some commercial burglaries.

The GPS tracker used by ROPE had a cell phone piece and a GPS piece, which communicated to determine the latitude and longitude of where a unit was located. A battery that didn’t interfere with vehicle operation operated the device. It was activated before the installation and stored location data in its memory. Police could access the historical data as well as display location in real time. Continue reading