Illegal Search And Seizure

Franks Hearing is Key to Attacking Search Warrant

May 27, 2009 | Steven D. Silverman

Aggressive Maryland criminal defense attorneys know that the best way to attack a search warrant is by attacking the affidavit in support of the warrant. This is commonly referred to as a Franks Hearing.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant”, and thus created a rule of “limited scope”.

The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof.

In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.”
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Is Legal for to Conduct a Strip Search After Arrest on Traffic Charges?

March 10, 2009 | Brian G. Thompson

Maryland Criminal Attorney Brian Thompson successfully defends client charged with Possession with Intent to Distribute Cocaine. The issue in this case was whether or not the police can conduct a strip search on a person who is arrested for a traffic violation. In Maryland, the police have the discretion to arrest or to simply issue citations and release people who are charged with incarcerable traffic violation such as Driving Under the Influence or Impaired by Alcohol, Driving While Suspended, Driving Without Insurance, Hit and Run, etc., In most instances, so long as the person is able to be conclusively identified, the officer with cite and release
However, in cases where the police are unable to conclusively identify a person because the person does not have proper identification or in situations where the police want the excuse to search the person’s vehicle, they will arrest for these violations. My recent case falls into the latter category. Here are the facts:
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What is “constructive possession” of a handgun or a controlled dangerous substance?

December 4, 2008 | Brian G. Thompson

Maryland Criminal Attorney What exactly does it mean to be in “constructive possession” of contraband such as drugs or illegal weapons in Maryland? I was faced with this fairly common legal issue in a case in the District Court for Baltimore County in Catonsville this week. The facts of the case were as follows:

My client was operating a motor vehicle in the Catonsville area of Baltimore County one day this past summer. The police noted in their report that the car caught their attention because the operator was not wearing his seat belt. (I’m sure that the fact that he was a young black male had nothing to do with it). The officer’s turned around and followed the vehicle and made several other observations such as speeding and frequent lane changes. They pulled the vehicle over and identified my client as the driver and sole occupant of the vehicle. My client produced a valid driver’s license as well as the registration which confirmed that the car was registered to his father.
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Can a police officer pull a vehicle over for having an inoperative center brake light in Maryland?

December 2, 2008 | Brian G. Thompson

Maryland Criminal Attorney I had this issue in a case in the District Court in Baltimore City today. (The case was ultimately postponed so I will have to update the blog regarding the disposition of case). The facts of the case are that a police officer was travelling behind my client in her marked patrol unit. As my client approached a red light the officer noticed that the center brake light did not illuminate when the other two did. She activated her emergency equipment and pulled my client over for the purpose, according to her report, of issuing a repair order. She also ran my client’s license through the MVA computer and determined that his license was suspended at which time she placed him under arrest. Was this a legal stop?

The problem with the stop as I see it, is that under Maryland law, all motor vehicles are required to have TWO operating brake lights, not three. So the question is, does an officer have probable cause to pull someone over because the vehicle that that person is operating has an non-functioning but clearly optional equipment. In my view the answer is no. Unfortunately, the Court of Appeals has not ruled yet on this precise issue but we can learn something about how they may rule by their rulings on some similar cases.
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Maryland Criminal Attorney discusses the frisk component of the Terry stop based upon reasonable articulable suspicion

August 18, 2008 | Brian G. Thompson

Maryland Criminal Lawyer Maryland Criminal Attorney – Baltimore Criminal Lawyer – Baltimore Criminal Attorney. I had an interesting stop and frisk case today in the Baltimore City Circuit Court. I was prepared for trial today but unfortunately the case was postponed because the Assistant State’s Attorney was in trial on another case. In this case I will be moving to suppress the evidence because although I believe that the State has a reasonable argument that the police officer who stopped my client had reasonable articulable suspicion to do so, I do not believe that the officer had reasonable articulable suspicion to believe that my client was armed and dangerous and conduct a pat down of my client which led to the recovery of illegal narcotics.

The facts of the case are simple. The police allege that they observed my client drive up to an apartment complex in area of town with a high volume of drug activity. They claim that they watched as my client beeped his horn a few times signalling a women to come out of an apartment. The women then allegedly gets into my client’s car for just a few seconds and the police claim to see some sort of exchange take place. The women then exits the car and is allegedly examining small objects in her hand that the police claim are consistent in size and shape of controlled dangerous substances such as cocaine or heroin. Based solely on these observations the police pull my client over, order him out of the car and pat him down, supposedly looking for weapons to ensure officer safety, and recover 40 capsules containing cocaine.
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Update of Possession with Intent to Distribute Marijuana Case involving Confidential Informant

August 13, 2008 | Brian G. Thompson

Maryland Criminal Attorney Last month I blogged about a Possession with Intent to Distribute Marijuana Case that I was handling in the Circuit Court for Baltimore City that involved a Confidential Informant. I wrote that in many cases involving the Possession with Intent to Distribute Marijuana, Cocaine, Heroin or other controlled dangerous substances, the police have utilized a confidential informant known in the street vernacular as a snitch. In the case I was handling I believed that I could force the disclosure of the informant’s identity because I believed that the person may have been the brother of the person whom my client was with when he was arrested. I filed a written motion based on the facts as laid out in the statement of charges. Unfortunately, a Criminal Defense Attorney never really knows what the facts will be in their entirety until the police officers get on the stand and testify because they invariably add facts that were not in the charging document. This makes it somewhat difficult to prepare for these cases because, again the attorney doesn’t know the complete factual scenario until the court date when the motion has to be argued. As a reminder, the facts as laid out in the statement of charges is a follows:
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Confidential Informants – When the Government must disclose their identity?

July 15, 2008 | Brian G. Thompson

For a Maryland Criminal Attorney it is imperative to understand the law regarding the use of confidential informants by police and prosecutors. There are generally two issues when dealing with confidential informants: The first issue is does the confidential informant provide sufficiently detailed information about which he or she can demonstrate a basis of knowledge to justify probable cause for a search or at least reasonable articulable suspicion for an investigatory stop. The second issue is whether or not the government must disclose the identity of the informant. I will discuss this second issue in this blog and leave the first issue for another day. The issue of whether or not the government must disclose the identity of the confidential informant issue turns on whether the informant is a “mere tipster” or an actually participant in the transaction. I have a case that I am currently working on where I intend to request the disclosure of the identity of the confidential informant. Here is my memorandum of law in support of that motion. I have deleted the last names and other identifying information of the participants including my client for privacy reasons.
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Probable cause to search in “second stop” case in Baltimore CIty Mary

June 26, 2008 | Brian G. Thompson

I had a CDS Possession case in which my client was alleged to have been in possession of both marijuana and cocaine this afternoon in Essex District Court in Baltimore County Maryland. As an Aggressive Maryland Criminal Attorney the first thing I look at in CDS Possession or Driving Under the Influence (DUI) or Driving While Impaired) (DWI) cases is whether or not the police officer had probable cause to stop and ultimately search my client for contraband. In a case that I recently handled in Baltimore City Maryland Circuit Court, the officer may have had probable cause to stop my client but he did not have probable cause to search my client’s person or his motor vehicle.
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Illegal Search and Seizure and other Constitutional violations leading to Suppression of Evidence under Maryland Law

June 23, 2008 | Brian G. Thompson

Maryland Criminal Attorney – Maryland Criminal Lawyer – Baltimore Criminal Attorney – Baltimore Criminal Lawyer In all criminal cases there are basically two types of defenses: legal defenses and factual defenses. Legal defenses are common in possession with the intent to distribute narcotics cases, rape, robbery, murder and burglary cases, as well as driving under the influence (DUI) and domestic violence cases. To determine whether a legal defense exists in a particular case an aggressive criminal attorney will typically ask several questions of the defendant such as: Were you read your Miranda Rights prior to giving the police a statement? Did the police show you a search warrant and leave you a copy of same? Did you consent to the search of your home, car or person? These questions will help an aggressive criminal attorney begin his investigation into whether the police violated the client’s rights either by conducting an illegal search or illegally obtaining a statement.
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