Maryland Criminal Attorney Blog
The answer to the question is no. In fact the answer is that the police may not stop a person based on an anonymous tip in any state in the country because the law on this issue comes from a Supreme Court of the United States decision, as opposed to a state appellate court decision, and thus applies to all of the states. I used this issue to win a post conviction motion that I filed on behalf of a client in the Baltimore County Circuit Court. As some are aware, post convictions are rarely granted in Maryland, but this one was because, among other issues, the attorney who represented my client at trial had failed to raise this well settled issue in a case where it clearly applied.
The case that controls this issue is Florida v. J.L. In that case the police received an anonymous telephone tip that a young black male dressed a certain way and standing at a specific corner, was armed with a handgun. The police responded to the area and observed a young black male matching the description given by the anonymous tipster. The police stopped the young man (actually he was a juvenile, hence the use of his initials in the case in place of his name). In an extremely rare unanimous decision the Court ruled that the police had violated JL’s Fourth Amendment rights and laid down the rule that an anonymous tip alone was insufficient to give the police probable cause to stop and search a person.
In the case I recently prevailed on post conviction, the facts were quite similar. As I said, the judge ruled that my client had received ineffective assistance of counsel because, among other reasons, he had failed to raise this obvious issue. Here is the brief that I filed. (I have redacted the names of my client and the attorneys to protect their privacy).
Comes now the Petitioner, Arthur W., inmate # 337993. Who is presently incarcerated in the Division of Corrections Roxbury Correctional Institute 18701 Roxbury Rd Hagerstown, Maryland 21746, by and through his attorney, Brian G. Thompson, and respectfully moves this Honorable Court for relief, pursuant to Article 27, § 645 (a) of the Annotated Code of Maryland and Rule 4-401 through 4-407 of the Maryland Rules of Procedure, as well as Maryland Rules of Procedure 4-345 (a) and in support thereof states as follows:
I. ARGUMENT
Petitioner, Arthur W., hired an attorney to represent him in Baltimore County Circuit Court Case 04CR1806. The Petitioner was charged with Possession with Intent to Distribute. On the date of trial Mr. ______ sent a substitute counsel in his place. In a subsequent motion for new trial Mr. _____ admitted to Judge Turnbull that he instructed Mr. ________, “to attempt to work the case out, but if it couldn’t’t be worked out, Mr. ______, would come out and try the case.” Disposition and Motion November 17, 2004 Page 2 Line 12-17. (See Attached transcript)
Instead of following Mr. ______ instructions Mr. ________, engaged in an unsuccessful motion to suppress, followed by a not guilty statement of fact, culminating in a three-year sentence with all but six months suspended for Petitioner. In his motion to suppress Mr. Atkinson failed to raise and apply black letter law, which would have led to suppression of the evidence against Petitioner and an acquittal.
Mr. _________, failed to raise in his motion to suppress the Supreme Court case of Florida v. J.L. 529 U.S. 266 (2000). Florida v. J.L. holds that an anonymous tip that a person is carrying a gun, without more, is in sufficient to justify a police officer’s stop and frisk of that person. In Florida v. J.L. an anonymous tipster stated a young black male, in a plaid shirt, possessed a gun at a particular bus stop. The police located the individual searched him and recovered a gun.
In this case the Officer Tufts admitted that an anonymous subject, the officer met at a location on the street, said a black male in a black hat had threatened him with a gun. After a canvas of the area the Petitioner, a black male wearing a black hat, was located and the office asked him to put his hands up and approach the officer. As the petitioner approached the officer the officer drew his service revolver seizing the petitioner. An eventual search of the Petitioner would reveal crack cocaine in a quantity to justify the possession with intent charge. Based on Florida v. J.L. this seizure was unlawful and if raised by defense counsel would have led to the suppression of the evidence and the defendant’s acquittal. Therefore, defense counsel was ineffective.
Further, there were specific arguments Mr. could have made to challenge the arrest as unconstitutional. This includes that the arrest, for disorderly conduct was illegal. On the stand Officer Tufts testified that after chasing Petitioner he placed him under arrest for Disorderly Conduct. Mr. failed to argue that the mere act of running from the police does not constitute Disorderly Conduct.
In fact, if Officer Tufts were chasing the defendant because he believed he was the person that pointed the gun at the unknown victim, his reasonable articulable suspicion would have been dispelled when he patted down the Petitioner and failed to find a weapon. Instead he placed the defendant under arrest for disorderly conduct, a crime for which the Petitioner’s actions did not fit. It wasn’t until this arrest, and subsequent search of the defendant’s pockets, that Officer Tufts found the crack cocaine. Even if Officer Tufts has reasonable articulable suspicion to chase and tackle the Petitioner, which Florida v. J.L. refutes, he had no authority to arrest the Petitioner once his pat down turned up no evidence to corroborate the unanimous tip. His arrest for disorderly conduct was a sham to search a man who should not of been stopped in the first place.
II. HISTORY OF PRIOR PROCEEDINGS 1. On September 13, 2004 Petitioner appeared before the Honorable John Grason Turnbull II. After a contested motions hearing, petitioner proceeded on a not guilty statement of fact and was found guilty.
2. On November 17, 2004 Judge Turnbull sentences petitioner to a three-year sentence with all but six months suspended to the Baltimore County Detention Center.
III. STATEMENT OF THE CASE On April 6, 2004 Officer Jefferson Tufts responded to Thruway and Dundalk Ave at about noon. The complainant stated a tall black male wearing a black baseball cap had come to his residence, and threatened him with a gun. (Motion Transcript Page 3 Line 13-15) At the hearing the officer was asked if he was given any further information and he responded no. (M.T. Page 3 Line 16-18) On cross examination it was determined that the officer did not know the complainant and that he did not get his name or any personal information. (M.T. Page 7 Line 20-25)
After speaking to the unidentified person the officer began canvassing the area and located a black male wearing a black baseball cap. Officer Tufts approached the man and asked him to come towards him. As the man in the black hat approached the officer the officer drew his service revolver and pointed it at the man. At this time the man in the black hat ran. (M.T. Page 5 Line 15-21) After a brief chase the man in the hat was apprehended. Eventually it was determined that the man in the hat was the defendant, and a search of his person revealed fifty-two ziplock bags of crack cocaine.
III. SCOPE OF REVIEW Available to almost all persons convicted of a crime is Post Conviction Relief under CP 7-102, which sets forth those individuals’ rights:
Any person convicted of a crime and either incarcerated under a sentence of death or imprisonment or on parole or probation may institute a proceeding under this subtitle in the circuit court for the county to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived.
CP 7-102 describes the circumstances under which allegations are deemed to be finally litigated:
(1) For the purpose of this subtitle, an allegation of error shall be deemed
to be finally litigated when the appellate court of the State has rendered a decision on the merits thereof, either upon direct appeal or upon consideration of an application for leave to appeal filed pursuant to CP 7-102 of this subtitle, or when a court of original jurisdiction, after a full and fair hearing, has rendered a decision on the merits thereof upon a petition for a writ of habeas corpus or a writ of coram nobis, unless said decision upon the merits of such petition is clearly erroneous.
IV. INTRODUCTION Petitioner’s convictions and sentences are unlawful and unconstitutional and should be vacated for the reasons set forth below. Petitioner’s trial attorney did not raise many of the claims raised herein. However, Petitioner did not intelligently or knowingly fail to allege these grounds previously because he was never advised of his right to do so, either by his trial attorney, appellate attorney, or by the trial court.
These claims asserted herein are fundamental rights that are cognizable in a post-conviction proceeding. This Court should not impose a procedural bar to Petitioner’s claims set forth in this Petition for Post Conviction Relief. Such a procedural bar would be inconsistent with the waiver standard codified in CP 7-102 and would be unduly prejudicial to Petitioner.
V. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD The legal standard to be applied to determine whether there has been ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland defined a two part test, summarized in State v. Tichnell, 306 Md. 428 (1986), cert. Denied, 107 S.Ct. (1986), reh’g denied, 107 S.Ct. 942 (1985):
In Strickland the Supreme Court considered the proper standard for
judging a criminal defendant’s contention that counsel’s assistance was so
defective as to require the reversal of a conviction or death sentence. In it analysis, the Court said: “The benchmark for judging any claim of
ineffective assistance must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” A two-part test was articulated
in Strickland, i.e., that to establish a claim of ineffective assistance of
counsel the defendant must show both that (1) counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense.
For a deficiency, Strickland requires the defendant to prove counsel’s acts or omissions resulted from unreasonable professional judgement and that counsel’s performance failed to meet an objective standard of reasonableness. “Moreover, the defendant must overcome a presumption that the alleged acts or omissions might be the result of a sound trial strategy.” Id., at 441. For prejudice the defendant must show that counsel’s errors were so serious that they deprived the defendant of a fair trial, a trial whose result is reasonable. Id., at 440-41 Continuing comment on the prejudiced aspect, the Tichnell court said:
“It is not enough for the defendant merely to show that the error has some conceivable effect on the outcome of the proceedings, or that the errors impaired the presentation of the defense. The burden is on the defendant to establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Furthermore, a
reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. 306 Md. at 441-42.
In Bowers v. State, 320 Md. 416 (1990) the Court of Appeals interpreted Strickland and modified the reasonable probability test. The “reasonable probability” that but for counsel’s conduct the result would have been different was in Bowers transformed to a “substantial probability” standard with the Court stating:
“The evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected.” Id. 426-427.
It is thus the “substantial possibility” standard, which binds Maryland Courts today.
In addition the Bowers, Court concluded that it was possible for numerous small errors to culminate in a finding of ineffective assistance of counsel.
“Nevertheless we shall do so because an alternative ground for our holding is that the cumulative effect of numerous errors on the part of Reddick also deprived Bowers of the effective assistance of counsel. Id. 429
VII. CLAIMS
Applying the “substantial probability” test to Petitioner’s case, it is clear that one error alone, failing to apply Florida v. J.L. to the facts of his case, is sufficient to established trial counsel’s ineffectiveness.
Petitioner, Arthur, hired Mr. ______, Esquire to represent him in Baltimore County Circuit Court Case 04CR1806. The Petitioner was charged with Possession with Intent to Distribute. On the date of trial Mr. _______sent a substitute counsel in his place. In a subsequent motion for new trial Mr. admitted to Judge Turnbull that he instructed Mr. _________ to attempt to work the case out but if it couldn’t be worked out Mr. Mentzer would come out and try the case. Disposition and Motion November 17, 2004 Page 2 Line 12-17.
Instead of following Mr._______, instructions Mr. ________ engaged in an unsuccessful motion to suppress, followed by a NGSF, culminating in a three year with all but six month suspended sentence for Petitioner. In his motion to suppress Mr. Atkinson failed to raise and apply black letter law, which would have led to suppression of the evidence against Petitioner and an acquittal.
Mr.______ failed to raise in his motion to suppress the Supreme Court case of Florida v. J.L. 529 U.S. 266 (2000). Florida v. J.L., in which a unanimous Supreme Court holds that an anonymous tip that a person is carrying a gun, without more, is insufficient to justify a stop and frisk of an individual. In Florida v. J.L., an anonymous tipster stated a young black male, in a plaid shirt, possessed a gun at a particular bus stop. The police located the individual searched him and recovered a gun.
In this case the Officer Tufts admitted that an anonymous subject, the officer met at a location on the street, said a black male in a black hat had threatened him with a gun. After a canvas of the area the Petitioner, a black male wearing a black hat, was located and the officer asked him to put his hands up and approach the officer. As the Petitioner approached the officer the officer drew his service revolver seizing the Petitioner. Based on Florida v. J.L. this seizure was unlawful and if raised by defense counsel would have led to the suppression of the evidence and the defendant’s acquittal. Therefore, defense counsel was ineffective.
One of the last statements made by Mr. _______ is a startling admission as to the level of ineffectiveness Petitioner received through his lawyers. Mr _________, said, “I’ve indicated to Mr. ___________, if you would give him a new trail I will refund his fee and he can get other counsel.” Disposition and Motion November 17, 2004 Page 4 Line 13-15.
Further, there were specific arguments Mr. _________, could have made to challenge the arrest as unconstitutional. This includes that the arrest, for disorderly conduct was illegal. On the stand Officer Tufts testified that after chasing Petitioner he placed him under arrest for Disorderly Conduct. Mr. _________, failed to argue that the mere act of running from the police does not constitute Disorderly Conduct.
In fact, if Officer Tufts were chasing the defendant because he believed he was the person that pointed the gun at the unknown victim, his reasonable articulable suspicion would have been dispelled when he patted down the Petitioner and failed to find a weapon. Instead he placed the defendant under arrest for disorderly conduct, a crime for which the Petitioner’s actions did not fit. It wasn’t until this arrest and subsequent search of the defendant’s pockets that Officer Tufts found the crack cocaine. Even if Officer Tufts has reasonable articulable suspicion to chase and tackle the Petitioner, which Florida v. J.L. refutes, he had no authority to arrest the Petitioner once his pat down turned up no evidence to corroborate the unanimous tip. His arrest for disorderly conduct was a sham to search a man who should not of been stopped in the first place.