How the Criminal Justice System Works

I.          Police-citizen encounters implicating Fourth Amendment prohibition against unreasonable searches & seizures: The Fourth Amendment prohibition against unreasonable searches and seizures protects persons, homes, papers, and effects, and involves intrusions — on the street, in a vehicle, or in a home — initiated by a governmental actor (police or other governmental agent) on their own or based on citizen complaints to police or court commissioners.

A.        Mere accosting:  The least intrusive police-citizen encounter is no intrusion at all in constitutional terms.  An accidental, voluntary, or consensual encounter is an accosting.  Because an accosting has no restraint of liberty, an accosting does not implicate the Fourth Amendment.  It is not a seizure if a reasonable person would feel free to ignore the officers and leave.

B.         Stop or detention:  A stop or detention occurs when the police intrude on an individual’s reasonable expectation of privacy at a level less than a full custodial arrest.  It requires a show of authority and submission thereto.  Such an intrusion requires reasonable suspicion that criminal activity is afoot.

C.        Stop & frisk:  A frisk occurs when the police “pat down” or “frisk” an individual for weapons (but do not search) or when police search the interior of a vehicle for weapons.  Such an intrusion requires reasonable suspicion that the individual is armed and dangerous.

D.        Arrest:  An arrest occurs when the police intrude on an individual’s reasonable expectation of privacy at a level equal to a full custodial arrest at common law.  A warrantless arrest for a felony requires probable cause to believe that the individual being arrested committed a felony.  A warrantless arrest for a misdemeanor generally requires that a misdemeanor be committed in the officer’s presence.  An arrest requires probable cause and a warrant, issued by a neutral and detached magistrate (in Maryland, that’s a judge) when the arrest is taking place in the arrestee’s home (unless there is an exigency or consent to enter) or when the arrest is for a misdemeanor not committed in the officer’s presence.

E. Search:  Other than inventory searches and some administrative searches, a search requires probable cause to believe that particularized fruits, evidence, or instrumentalities of a crime are located in a particularized place.  A search requires either a warrant or a constitutionally approved exception to the warrant requirement, e.g., automobile exception, exigency, search incident to a lawful arrest, plain view.

F.         Entry into searchee’s or arrestee’s home:  Police may enter the searchee’s or arrestee’s home in only four circumstances, as follows:

1.         Consent:  An individual with a reasonable expectation of privacy in the home may give consent to enter, provided consent was voluntarily given, measured under a totality of the circumstances.

2.         Search warrant:  The police may search an individual’s home based on a search warrant for the home, limited only by reasonableness.

3.         Arrest warrant:  The police may enter an arrestee’s home only if there is reasonable cause to believe the arrestee is at home at that time.

4.         Exigency/“hot pursuit”:  The police may enter a home if there is probable cause to believe that a fleeing felony or evidence is present, and the arrestee/evidence will be gone if the police take time to obtain a warrant.

II.         Police-citizen encounters implicating Fifth Amendment privilege against compelled self-incrimination:  The Fifth Amendment privilege against compelled self-incrimination places limitations on police obtaining written and oral statements or confessions from individuals in both pre-arrest and post-arrest scenarios.

A.        Voluntariness under totality of circumstances:  The voluntariness standard applies whenever there is conversation between the police and any individual in all pre-arrest and post-arrest scenarios.  In Maryland, an otherwise voluntary statement may not be voluntary if it was taken by the police during a period of unnecessary delay in taking the arrestee before the a court commission, particularly if the purpose of the delay was to obtain a statement.

B.         Miranda rights:  Miranda v. Arizona, 384 U.S. 486 (1966), and its progeny, entitle the individuals to be advised that (1) there is a right to remain silent, (2) anything the individual says will be used against the individual, (3) the individual has the right to an attorney present during questioning, and (4) the police will provide the individual with an attorney if the individual cannot afford an attorney.  Miranda rights only apply during police custodial interrogation, meaning when the individual is being subjected to questioning or its functional equivalent while under arrest.

C.        Maryland common law:  A statement is inadmissible, under Maryland’s common law, if it is given in response to police promises or inducements.

III.       Police-citizen encounters implicating Sixth Amendment right to counsel &/or Fourteenth Amendment DPC during identifications: Both Sixth Amendment right to counsel and Fourteenth Amendment DPC place limitations on police obtaining identifications, e.g., photo arrays, line-ups, show-ups, both pre-charging and post-charging.

A.        All identifications:  When an individual is identified (whether or not formally charged and whether or not during a critical stage), the identification procedure must be reliable, under a totality of the circumstances, under Fourteenth Amendment DPC.

B.         Identifications during critical stages after formal charging or during trial-like confrontation:  When an individual is identified, during a critical stage (a non-videotaped line-up or show-up, after formal charges have been filed, or during a trial-like confrontation (an adversarial preliminary hearing)), the individual is entitled not only to reliability, but also entitled, under the Sixth Amendment right to counsel, to have counsel present during the identification.

IV.       Initial appearance of arrestees in District Court: The Fourth Amendment prohibition against unreasonable searches and seizures requires that an individual arrested without a warrant be taken before a judicial officer promptly (48 hours is presumptively prompt).  In Maryland, all arrestees (warrant and warrantless) must be taken before a Court Commissioner as soon as practicable but, in no event, later than 24 hours after arrest.  This is a non-adversarial preliminary hearing with no right to counsel.  The judicial officer makes the following determinations:

A.        Probable cause to arrest:  The judicial officer determines whether there is probable cause for the arrest and continued detention of the arrestee (in the same manner that a neutral and detached magistrate would have decided whether to issue an arrest warrant).  If there is no probable cause, the Fourth Amendment requires that the illegal arrest be terminated and the individual be released.  If there is probable cause, the judicial officer proceeds to the next steps.

B.         Notification of pending charges:  The judicial officer informs the arrestee of the charges for which the arrestee has been arrested.

C.        Pretrial release determination:  The judicial officer determines, based on constitution, statute or court rule, whether the individual is entitled to pretrial release. If so, the judicial officer determines the release status and conditions, using discretion for ensuring both the arrestee’s appearance when required and the safety of others.  About half of all arrestees are (1) released on personal recognizance, meaning a promise to obey all laws and conditions of pretrial release, and to appear in court when required, or (2) released to the custody of another person, e.g., a juvenile released to the custody of a parent.  About half of all arrestees are released by posting bond, supported by a pledge of real property, cash posted with a court, or a pledge by a corporate surety, i.e., a bail bondsman.

D.        Preliminary hearing:  The judicial officer informs arrestees who are arrested for felonies (but not misdemeanors) that if the arrestee has not, or is not, indicted by a grand jury, the arrestee has a right to a preliminary hearing, but only if requested within ten days.  This is an adversarial preliminary hearing to determine whether there is probable cause to formally charge the arrestee and require the arrestee to stand trial and defend against the charges.

E.         Right to counsel:  The judicial officer informs the arrestee of the right to counsel and the advantages of counsel, even if Defendant plans on pleading guilty.

V.        Preliminary hearings in District Court: Defendant who is arrested for a felony, but not indicted, is entitled to an adversarial preliminary hearing, in which Defendant is entitled to counsel, for the purpose of determining whether there is probable cause to require Defendant to stand trial on those charges, provided Defendant requests such hearing within ten days after appearance before the Court Commissioner.

VI.       Charging process: A charging document is prepared by a prosecutor or police officer, alleging either that an adult committed one or more crimes (felonies, misdemeanors, or both) or that a juvenile committed one or more non-criminal delinquent acts.  In state court, there must be an appropriate matching of the charging document with criminal jurisdiction, i.e., Circuit Court versus District Court, or juvenile jurisdiction.

A.        Grand jury indictment: A prosecutor may present felony charges ex parte to a grand jury, meaning that neither Defendant nor counsel is present.  A grand jury formally charges by issuing a “true bill” criminal charge, i.e., an indictment, which can only be litigated in Circuit Court.

B.         Criminal information: A prosecutor may prepare and file criminal charges by way of a criminal information for felonies litigated in Circuit Court and for misdemeanors litigated in either District Court or Circuit Court.

C.        Statement of charges: A police officer prepares a statement of charges in connection with each arrest.  This document may be used by a prosecutor as the charging document, provided the charges include only District Court misdemeanors.

D.        Citation: A police officer may prepare and issue a citation for traffic misdemeanors, which serve as the charging document in District Court.

E.         Juvenile delinquency petition: A prosecutor may prepare and file a juvenile delinquency petition, alleging delinquent acts committed by a juvenile, which if juvenile jurisdiction is not waived, is litigated in Circuit Court, sitting as the juvenile court.  Although all individuals under age 18 are juveniles, depending on the age of the juvenile and the nature of the charges, a juvenile may be prosecuted as an adult in criminal court at ages 16 or 14, depending on the offense.

VII.      Arraignment: An arraignment is a Circuit Court appearance in which Defendant enters a plea of guilty or not guilty.  Occasionally, there is a plea of nolo contendere or not criminally responsible (NCR) by reason of insanity.  An arraignment is usually Defendant’s first appearance in Circuit Court, which is an event that commences the “clock” for other events, e.g., discovery requirements, pretrial motions, non-constitutional speedy trial analysis.

VIII.     Discovery: Discovery is the pretrial process of each side obtaining/providing certain information and evidence from/to the other side.

A.        Constitutional discovery:  Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, a prosecutor is required to gratuitously provide all exculpatory evidence, meaning all evidence that is favorable to the defendant or that may be used to impeach prosecution witnesses.

B.         Non-constitutional discovery:  Under court rules, both the prosecution and the defense may be required certain information and evidence be provided by the other side, if timely requested.

C.        Bill of particulars:  Under court rules, Defendant may request a bill of particulars to supplement the charging document.  If the prosecution charges by way of a statutory short-form indictment, the defendant is entitled to a bill of particulars.  Otherwise, whether to require a bill of particulars is within the court’s discretion.

IX.       Mandatory notice from the State & mandatory motions from Defendant

A. Prosecutorial mandatory notice:  Some sentencing options, e.g., recidivism sentencing, enhanced sentencing, death penalty, life without parole, require the prosecutor to provide timely written notice to Defendant.

B.         Defense mandatory motions:  If Defendant wishes to make certain challenges to the prosecution’s case, Defendant must file timely pretrial motions, as follows:

1.         Defective charging document:  A charging document’s failure to provide subject matter jurisdiction may be challenged by Defendant at any time at any level, e.g., on appeal even if not raised at trial.  All other charging document defects, e.g., improper personal jurisdiction or venue, violation of the Fifth Amendment prohibition against double jeopardy, must be raised in a motion to dismiss.

2.         Unconstitutionally seized evidence:  If evidence, statements, and/or identifications were obtained unconstitutionally, their admissibility must be challenged by a motion to suppress.

3.        Severance:  If counts and/or Defendants were improperly joined, such joinder must be challenged by a motion to sever..

X.        Plea bargaining & guilty pleas:  More than 80% of all criminal cases are resolved by a two-party or three-party plea agreement, i.e., by a “constitutional contracts.”

A.        Types of plea agreement

1.         Standard guilty plea:  In a standard guilty plea, Defendant pleads guilty and admits guilt.

2.         Alford guilty plea:  Under North Carolina v. Alford, 400 U.S. 25 (1970), Defendant may plead guilty without admitting guilt.

3.         “Not guilty/statement of facts”:  Under a plea of “not guilty/statement of facts,” Defendant pleads “not guilty,” but proceeds on an agreed statement of facts as if guilty.

4.         Nolo contendere plea:  Under a plea of nolo contendere, Defendant does not plead guilty, and is not found guilty, but Defendant agrees not to contest the charges, allowing the court to treat Defendant as if guilty.

B.         Parties to plea agreements

1.         Two-party ABA approved plea:  A two-party ABA approved plea agreement is an agreement between the prosecution and defense, presented as a non-binding recommendation to the court.

2.         Three-party ABA approved plea:  A three-party ABA approved plea agreement is an agreement in which the prosecution and defense present a binding agreement to the court, which, if the court is not willing to “bind” itself, permits Defendant to go to another Court.

C.        Terms of plea agreements:  The negotiated terms may include anything that is not against public policy and usually includes one or more of the following:

1.         Offenses:  Agreements almost always include those offenses/counts to which Defendant is pleading guilty and other charges that will be dismissed by way of nolle prosequi (nol pros), placed on an inactive docket by way of stet, or not charged in the first instance.

2.         Cooperation by Defendant:  Sometimes, agreements include cooperation by Defendant, e.g., testifying.

3.         Disposition:  Agreements usually include the disposition or sentence, e.g., period of incarceration, terms and length of probation or parole, restitution, community service.

XI.       Trial rights

A.        Right to counsel

1.         Fifth Amendment right to counsel:  Defendant has a Fifth Amendment right to counsel during custodial interrogation under Miranda.

2.         Sixth Amendment right to counsel:  Defendant has a Sixth Amendment right to counsel for all critical stages from the commencement of formal judicial adversarial proceedings, i.e., formally charged (or a trial-like confrontation), through sentencing, if Defendant is charged with a felony or charged with a misdemeanor for which Defendant faces potential incarceration.

3.         Fifth/Fourteenth Amendment Equal Protection Clause right to counsel:  Equal protection ensures that indigent Defendants have a right to counsel on the first appeal of right.  For Defendants in a state criminal justice system, this is based on the Fourteenth Amendment.  For Defendants in the federal criminal justice system, this is based on the Fifth Amendment.

4.         Fifth/Fourteenth Amendment DPC right to counsel:  Due process ensures that indigent Defendants have a right of counsel for violation or probation and revocation of parole proceedings if the case is complex or involves a constitutional question.  For Defendants in a state criminal justice system, this is based on the Fourteenth Amendment DPC.  For Defendants in the federal criminal justice system, this is based on the Fifth Amendment DPC.

5.         Maryland statutory right to counsel:  Maryland Defendants are entitled to counsel, by statute, (a) for misdemeanors with a potential incarceration in excess of three months or a fine in excess of $500, and (b) for a first post conviction proceeding.

B.         Right to speedy trial

1.         Sixth Amendment right to speedy trial:  To determine if Defendant has been denied the Sixth Amendment right to speedy trial, consider (a) the length of any delay, (b) the reasons for the delay, (c) whether Defendant demanded a speedy trial, and (d) the prejudice to Defendant by the delay.  It probably takes at least a one-year delay to trigger the analysis.

2.         Maryland right to speedy trial:  In Maryland, by statute and court rule, Defendant is entitled to the commencement of the trial no later than 180 days after the first appearance of Defendant or first appearance of counsel in Circuit Court, unless the administrative judge postpones the trial for good cause shown.

C.        Right to trial by jury

1.         Sixth Amendment right to trial by jury:  The Sixth Amendment right to a jury trial applies if there is potential incarceration exceeding sixth months on any given count in the charging document.  A jury requires at least six jurors, but does not require unanimity, i.e., juries of 10-2, 9-3, and 6-0 were held as constitutional, while juries of 5-1 and 5-0 were held unconstitutional.  A jury venire/pool must include a fair cross-section that does not exclude large distinctive groups, i.e., race, ethnicity, national original, religion, gender.  Defendant may strike “for cause” potential jurors who are unable to render a verdict based solely on the evidence.  Defendant may exercise peremptory strikes (strikes not “for cause”), as provided by statute or court rule.  However, because there is an equal protection right to serve on a jury, Defendant may not exercise a peremptory strike based solely on the potential juror’s membership in a large distinctive group.

2.         Maryland right to trial by jury:  Maryland’s common law entitles Defendant to a jury trial in Circuit Court if there is potential incarceration.  There are no jury trials in District Court but, if Defendant is subject to potential incarceration in excess of 90 days on any given count, Defendant may pray for a jury trial, which divests the District Court of jurisdiction.  A jury requires 12 jurors and unanimity, unless there is a knowing and intelligent waiver.

D.        Right to fair trial:  The Sixth Amendment requires a fair trial.

E.         Right to public trial

1.         Sixth Amendment right to public trial:  Defendant has a Sixth Amendment right to ensure that the trial is open to the public at all stages subsequent to grand jury proceedings, unless there are “higher values” of witness or juror fear or embarrassment, permitting limited closure.

2.         First Amendment right to public trial:  The press and public have a First Amendment right to ensure that the trial is open to the public at all stages subsequent to grand jury proceedings, subject to legitimate time, place, and manner restrictions.

3.         Maryland’s crime victim’s constitutional amendment:  Md. Decl. Rights art. 47 ensures crime victims a state constitutional right to notice of most proceedings and a right to be present.

F.         Right to confrontation:  The Sixth Amendment right to confrontation guarantees face-to-face confrontation, except in child abuse cases, and guarantees the right to cross-examine witness against Defendant, precluding testimonial hearsay in most circumstances.  Defendant may forfeit this right through witness intimidation.

G.        Right to compulsory process:  The Sixth Amendment right to compulsory process guarantees Defendant the right to call any witness, unless the witness has a testimonial privilege or is an alibi witness that the defense intentionally failed to disclose to the prosecution.

H.        Fifth/Fourteenth Amendment DPC:  As to each element of each offense and the criminal agency of Defendant, the Fourteenth Amendment DPC in state criminal justice systems and the Fifth Amendment DPC in the federal criminal justice system place on the prosecution (1) the burden of production, i.e., the burden of producing a prima facie case (tested through a motion for judgment of acquittal at the end of the prosecution’s case-in-chief), and (2) the burden of persuasion, persuading the fact finder (jury or judge) of guilt beyond a reasonable doubt (tested through the verdict, following jury instructions).

XII.      Post-trial motions: Defendant may file a Motion for a New Trial (1) in the interests of justice, (2) based on newly discovered evidence, or (3) based on fraud, mistake, or irregularity.  A few jurisdictions (not Maryland) permit a motion for judgment notwithstanding the verdict, i.e., a criminal JNOV.

XIII.     Sentencing: Sentencing issues include the following:

A.        Sentencing authority:  The sentencing authority in a given situation may be a judge (most typical) and/or a jury.  In Maryland, the jury never plays a role in sentencing, except in death penalty cases.

B.         Mandatory or discretionary sentencing:  By statute, a sentence may be mandatory or discretionary at both the level of imposition of sentence and/or the level of execution of sentence.

C.        Types of sentence:  Sentences include incarceration, home detention, drug and alcohol treatment, probation after judgment, probation before judgment (PBJ), fines, restitution, and/or community service.

D.        Sentencing enhancements:  Under some circumstances, the legislature provides permissive or mandatory sentencing enhancements.

E.         Sentences eligible for parole & sentences not eligible for parole:  Some sentences require, and some permit, incarceration with parole or without parole.

F.         Pre-sentence investigation (PSI) reports:  Courts usually order a PSI report.

G.        Victim impact statements (VIS):  Victims of crimes are entitled at sentencing to provide a VIS to the sentencing judge.

H.        Sentencing factors:  Courts may consider any information that is relevant to the offense or the offender, meaning relevant to the crime or the criminal, provided that, as to negative information, the prosecution provided the information to Defendant prior to sentencing, with sufficient time for Defendant to investigate the information.

I. Sentencing guidelines:  Most jurisdictions, including Maryland, have sentencing guidelines.  Sentencing guidelines must be discretionary, and not mandatory, unless that which supports a sentencing enhancement was pleaded by the prosecution, was supported by evidence at trial, and was found to exist beyond a reasonable doubt.

J.          Capital offenses:  Thirty-eight states and the federal government have a death penalty statute.  The Eighth Amendment prohibition against cruel and unusual punishment limits the imposition of the death penalty to homicide cases (in Maryland, first degree murder).  Defendant is entitled (1) to a bifurcated proceeding of guilt or innocence and sentencing, (2) to select sentencing by a judge or a jury, (3) to require the prosecution to persuade the sentencing authority of one or more aggravating circumstances beyond a reasonable doubt, (4) to present all relevant mitigating factors, (5) to require the prosecution to persuade the sentencing authority, at least by a preponderance of the evidence, that the aggravating circumstances outweigh the mitigating circumstances, and (6) to an automatic appeal (in Maryland, all appeals of right go from Circuit Court to Court of Special Appeals (CSA), except death sentences, which are automatically reviewed by the Court of Appeals (COA).

K. Post-sentencing sentence motions:  Maryland provides multiple post-sentencing sentence motions, as follows:

1.         Application for Review of Sentence by Three-Judge Panel:  Defendant may file an Application for Review of Sentence by a Three-Judge Panel within 30 days after sentencing.  Although the sentencing judge may not serve on the review panel, the panel may confer with the sentencing judge and may decrease the sentence, increase the sentence, or leave the sentence unchanged.

2.         Motion for Modification of Reduction of Sentence:  Defendant may file a Motion for Modification or Reduction of Sentence within 90 days after sentencing.  Because sentencing judges may hold the motion sub curia for five years, most Defendants request no ruling until Defendant files an amended motion.  The sentencing judge may deny the motion without a hearing, but may only grant the motion following a hearing.  The sentencing judge may decrease the sentence or leave it unchanged, but may not increase the sentence.

3.         Motion to Correct Illegal Sentence:  Defendant may file a Motion to Correct Illegal Sentence at any time.  The sentencing judge may deny the motion without a hearing, but may only grant the motion following a hearing.

L.         Violation of probation:  If the sentencing judge places Defendant on probation, whether before or after judgment, and Defendant fails to comply with probation conditions, the sentencing judge may, by a preponderance of the evidence, find Defendant in violation of probation and execute on some or all of the suspended sentence.

In Baltimore, there has been a change of venue motion filed in the Freddie Gray case.  Here is a little bit of information about change of venue…

The Defendant has an absolute right to be tried in the jurisdiction where the crime allegedly occurred.  If the crime took place in Maryland, then the State of Maryland has personal jurisdiction over the Defendant and over the alleged crime.  The political subdivision is the county in which the crime allegedly occurred.  Maryland has 24 political subdivisions.  Just as Maryland has personal jurisdiction over the Defendant and over the crime, the county where the crime allegedly occurred has venue to try the case.  Although the Defendant has the right to be tried in the county in which the crime allegedly occurred, the Defendant also has a right to file for a change of venue.

If the Defendant files for a change of venue, the theory supporting a change of venue is that the Defendant is unable to obtain a fair trial in that venue, and is entitled to have the case moved to another venue in that same jurisdiction.  Most typically, a change of venue motion is denied.  The theory supporting denial of a change of venue motion is that, even if there has been inordinate publicity, through the use of extensive voir dire of potential jurors, the court will be able to impanel a fair and impartial jury.  Voir dire is the questions that the court asks potential jurors in an effort to discover potential biases and prejudices.  Voir dire questions posed to potential jurors must be answered by those potential jurors under oath or affirmation.  The Defendant has the right to have potentially biased or prejudiced jurors stricken so that the Defendant may obtain a fair and impartial jury.  Voir dire also entitles the Defendant to pose to the court questions, during voir dire, to help the Defendant learn what prejudices and biases potential jurors may have that may preclude one of more potential jurors from being able to decide the case based solely on the evidence that is presented at trial.  A fair and impartial jury is one that, although it may be familiar with the case, it has not formed an opinion as to guilt or innocence, and it will decide the case based solely on the evidence presented at trial.  Thus, publicity does not, by itself, entitle the Defendant to a change of venue.

However, if there is not only community saturation of information about the case, but there is community hostility toward the Defendant, the Defendant is entitled to relief toward his or her effort to obtain a fair and impartial jury.  In the hostility scenario, the Defendant may be entitled to some form of relief.  That relief may be afforded to the Defendant in one of two ways.  One method to deal with community hostility is to postpone the trial until such time as the community hostility has subsided.  One method to deal with community hostility is to move the case from that venue to another venue, in the same jurisdiction, where there is no such hostility or where there is a much lesser degree of hostility.

Five Theories to Suppress Illegally Obtained Statements

I.       Statement suppression theory #1 – Fourth Amendment “fruit of the poisonous tree”

If police make an illegal arrest, and then obtain a statement, the statement is likely to be suppressed, as a “fruit of the poisonous tree” of the illegal arrest, even if the statement was otherwise obtained constitutionally.  Thus, the statement is suppressed under the Fourth Amendment and not under the Fifth Amendment.

II.      Statement suppression theory #2 – involuntary statements under Maryland’s common law “promises & inducements”

If police obtain a statement by making the Defendant a promise or an inducement, even if the statement otherwise complies with the Fifth Amendment and the Fourteenth Amendment, the statement is inadmissible under Maryland’s common law prohibition against obtaining a statement based on “promises and inducements,” if the Defendant relied on that promise or inducement in making the statement.

III.    Statement suppression theory #3 – involuntary statements under the Due Process Clause of the Fourteenth Amendment, the Fifth Amendment privilege against compelled self-incrimination, &/or Md. Decl. of Rights art. 22

If police obtain a statement that is involuntary, under a totality of the circumstances, i.e., it is actually or subtly coerced and it is not voluntary, that statement is inadmissible, and it violates the Fifth Amendment privilege against compelled self-incrimination, the Fourteenth Amendment Due Process Clause, and/or the Md. Decl. of Rights art. 22.

IV.     Statement suppression theory #4 – statements that violate Miranda v. Arizona & its progeny

If police obtain a statement from a Defendant, while the Defendant is subject to custodial interrogation, for the statement to be admissible, the Defendant (1) must have been afforded the rights under Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny; and (2) must have made a knowing and intelligent waiver of those rights.  Miranda rights include (1) the right to remain silent; (2) knowledge that any statement given may be used against the Defendant in a court of law; (3) the right to have counsel present during interrogation; and (4) the right to counsel during interrogation, at government’s expense, if the Defendant cannot afford counsel.

V.      Statement suppression theory #5 – statements that violate the Sixth Amendment right to counsel

If police obtain a statement from a Defendant who has been formally charged, i.e., indicted or subject to a criminal information, the Defendant has a Sixth Amendment right to counsel.  For the statement to be admissible, the Defendant (1) must have been given the same rights as provided under Miranda v. Arizona; and (2) must have made a knowing and intelligent waiver of those rights.  Unlike Fifth Amendment Miranda, for which the Defendant must take steps to invoke the rights, the Sixth Amendment rights to counsel is self-executing, and the Defendant needs to take no steps to invoke the right.

In In re Darryl P., 211 Md. App. 112 (2013), in an incredible 63-page opinion, Judge Moylan masterfully summarized and synthesized the five theories of statement suppression.  The Juvenile was originally charged, as an adult, with first degree assault, second degree assault, and use of a handgun.  He was released on bail.  Eventually, he was indicted and re-arrested for those charges and four other charges.  Jurisdiction was transferred to juvenile court.  His motion to suppress an inculpatory statement was denied.  On an agreed statement of facts, he was found delinquent.

Judge Moylan carefully analyzed each of the five suppression theories.  On the first four theories, the State prevailed.  On the fifth, theory, the Juvenile prevailed and his delinquent adjudication was vacated.  The Juvenile’s first theory to suppress the confession was that police illegally arrested him and the confession was the fruit of the poisonous tree of that illegal arrest.  The Juvenile argued that the second arrest warrant was illegal under Md. Rules 4-212 and 4-216.1 because he was already on bail, which would have continued.

Judge Moylan noted that the confession could only be suppressed as a fruit of the poisonous tree if the poisonous tree was a Fourth Amendment violation and not a violation of the Maryland Constitution, a Maryland statute, or a Maryland court rule.  Maryland, like the majority of states, has no state exclusionary rule and suppression must be based on a Fourth Amendment violation. See Brown v. State, 397 Md. 89 (2007).  Because the arrest, in this case, was supported by probable cause, the arrest did not violate the Fourth Amendment, and there is no federal exclusion based on a violation of state law.  Virginia v. Moore, 553 U.S. 164 (2008).

In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme Court suppressed a confession, even though the police complied with the Fifth Amendment, because the confession was a fruit of the poisonous tree of the underlying arrest that violated the Fourth Amendment.  That was not this case.

The Juvenile’s second theory to suppress the confession was that the police violated his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981).  Judge Moylan noted that, under Miranda, if the Juvenile was subjected to custodial interrogation, he had a right to remain silent and a right to Fifth Amendment counsel.  He further noted that, under Edwards, if the Juvenile requested counsel, police could not question him until counsel was made available or until the Juvenile initiated further conversation with the police directly or indirectly related to the investigation.

In this case, the trial court found the Juvenile (1) was given Miranda warnings, (2) stated that he understood those rights, (3) never invoked his right to silence, (4) never invoked his right to counsel, and (5) responded to police questioning, all of which indicated a waiver of his right to remain silent and his right to counsel.

Judge Moylan concluded that the trial court’s findings were not clearly erroneous.  Even an ambiguous invocation of rights (here there was no invocation) is insufficient to trigger Miranda and Edwards.  After giving Miranda warnings, police may interrogate a suspect who has neither invoked nor waived Miranda.  Berghuis v. Thompkins, 560 U.S. 370 (2010).  The Court held that, in this case, there was no violation of Miranda and Edwards.

The Juvenile’s third theory (Maryland common law) and fourth theory (federal Fifth and Fourteenth Amendments and state Md. Decl. of Rights art. 22 and art. 24) to suppress the confession was that the police violated multiple voluntariness standards.  Maryland’s common law prohibits obtaining a confession induced by threat of harm or promise of advantage. Judge Moylan noted that all of the voluntariness theories descended from a common parentage.  The Court held that there was no involuntariness of any kind.

The Juvenile’s fifth theory to suppress the confession was that the police violated his Sixth Amendment right to counsel, and the Court of Special Appeals agreed.  The Sixth Amendment right to counsel attaches at the time of adversarial judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment.  The right to counsel, even if attached, only applies during critical stages.

In this case, Judge Moylan held that, when the Juvenile was taken before a District Court Judge and made bail, he was “accused” and thus entitled to counsel on the three original charges.  The right to counsel applies at the first appearance before a judicial officer when told of the formal accusation against him, and restrictions are placed on his liberty.  Rothgery v. Gillespie County, 554 U.S. 191 (2008).  The Sixth Amendment right to counsel is “offense specific,” and it only applied, at that time, to the pending three charges and not to the other four charges that came six weeks later.

Once he was an accused, the police were prohibited, absent a waiver, from questioning him without counsel present. Unlike Fifth Amendment counsel, which is a protection against compelled self-incrimination, Sixth Amendment counsel is the right to rely on counsel as a “medium” between the Juvenile and the State.

In this case, the Juvenile was subjected to more than two hours of intense questioning without counsel present.  Judge Moylan noted that waiver of Sixth Amendment counsel must entail something more than a mere waiver of Fifth Amendment counsel during custodial interrogation.  He stated that the right to Sixth Amendment counsel is broader than Fifth Amendment Miranda counsel.  He also stated that the Supreme Court has not squarely addressed waiver of Sixth Amendment counsel, other than to recognize that a waiver of Fifth Amendment counsel is not necessarily a waiver of Sixth Amendment counsel.

In this case, the Juvenile retained private counsel two months before the interrogation that resulted in the confession.  Judge Moylan stated that compliance with Miranda in no way means that there was no Sixth Amendment violation.  The CSA held that, in this case, there was not a knowing and intelligent waiver of the Sixth Amendment right to counsel.  The Court stated that, because the Juvenile was on bail and not subject to arrest, counsel would have insisted on no interrogation.  The Court held that Fifth Amendment counsel only comes into existence when unambiguously invoked, but that Sixth Amendment counsel comes into existence, automatically, whether or not invoked, at the moment of formal charging, and it applies at every critical stage, including whenever uncounseled interrogation begins.  The Court reversed.

In most criminal cases, the Defendant is afforded an opportunity to accept a guilty plea.  The question is, if a plea can be negotiated, should the Defendant accept a guilty plea?  No two cases are alike, and there is no “one size fits all” answer to whether to accept a guilty plea.  Here are some of the considerations.

The “plus” of agreeing to plead guilty is that the Defendant usually – not always, but usually – is able to plead guilty to lesser charges and/or receive a lesser sentence.  To answer the question as to whether to plead guilty, the first consideration is, if the Defendant rejects a plea and goes to trial, what then happens?  If the Defendant rejects a guilty plea, and goes to trial, the Defendant may be found not guilty, which is the best possible result.

However, if the Defendant rejects a guilty plea, goes to trial, and is found guilty, i.e., loses at trial, the Defendant is usually convicted of something worse than the plea offer, and the sentence will almost always be harsher than if the Defendant accepted the plea.  Moreover, the Defendant, in most cases, will have a criminal record for the rest of his or her life.  Thus, the Defendant must consider (1) what are the chances of success if the Defendant goes to trial, i.e., what are the chances of a not guilty verdict on all counts; and (2) how much risk is the Defendant willing to accept.

Before deciding whether to accept a guilty plea, the Defendant must understand the difference between a two-party plea agreement and a three-party plea agreement.  In a two-party plea agreement, defense counsel and the prosecutor reach an agreement, but that agreement is not binding on the judge.  Usually, the judge will accept the plea, and the recommended sentence that goes with that plea.  However, there is no guarantee.  The amount of the sentence is still completely up to the judge.  The Defendant may argue for a lighter sentence than the one agreed to.  The Defendant may be sentenced to the sentence that was agreed to or be sentenced with a sentencing range agreed to.  Of course, the Defendant may be sentenced to the maximum sentence for the crime or crimes to which he pleaded guilty.

Maybe the prosecutor will agree to “remain silent” at sentencing or agree to recommend a cap on the sentence.  Usually, the court will accept the recommended sentence, but, again, there is no guarantee.  Often, the two-party plea agreement is an agreement to “sentencing guidelines.”  This means that if the guidelines are three years to seven years, the parties will recommend guidelines, with the right to argue for any sentence within the guidelines.  A two-party plea agreement is risky.  Defense counsel needs to know the judge’s track record when sentencing Defendants under a two-party plea agreement.

In a three-party plea agreement, the parties, through counsel, present the plea agreement to the judge, urging the judge to “bind the court” to the plea and the sentence.  Most judges, when presented with a three-party agreement, agree to join the plea and bind the court to the recommended sentence, but there is no guarantee.  The judge may defer accepting or rejecting the three-party plea agreement until the court receives the pre-sentence investigation report.  Occasionally, the plea is a partial two-party plea agreement and a partial three-party plea agreement.  This means that the parties and the court agree to a sentencing range, which is often the guidelines range, with the court deciding on the sentence, within the agreed to range, after hearing argument from both counsel.

Plea agreements, particularly in lower level State Courts for minor offenses, may not involve jail time.  There may be an agreement to plead guilty, be sentenced to jail time, have that jail time suspended, in return for restitution or community service.  The agreement may include that, upon successful completion of the plea conditions, the Defendant returns and the court strikes the guilty finding and enters probation before judgment.  Generally, this can eventually be expunged, resulting in no criminal record.  The best of all worlds for the Defendant is for the prosecutor to agree to nol pros, i.e., dismiss the charges.  This too can be expunged.

There is one downside to a three-party plea agreement.  With a two-party agreement, the Defendant may file a motion for modification or reduction of sentence (MMRS).  If such a motion is filed, the court may or may not modify or reduce the sentence.  Although the court may deny the motion, the court may not increase the sentence.  With a three-party agreement, the court may not modify or reduce the sentence, except under rare circumstances, which almost never apply.  Thus, the good news with a three-party agreement is certainty and, similarly, the bad news is that there is certainty.

The best of all worlds may be a two-party agreement in which the judge agrees to entertain an MMRS, with the understanding that if the Defendant has a “good adjustment record,” the court will seriously consider granting probation or granting probation before judgment.  If the court reduces the sentence to probation, the Defendant will be permitted to serve the remainder of the sentence “on the street.”  If the court reduces the sentence to probation before judgment, after successful completion of probation, and a waiting period (usually three years), the Defendant may file for expungement, which permits the Defendant to have this case forever erased from his record, as if it did not happen.

A plea agreement is not something that should be thrown together at the last minute, particularly if trial counsel is seeking a plea agreement because trial counsel is not prepared to go to trial.

Depending on the circumstances, last minute plea agreements because a lawyer is not prepared to go to trial can be an issue raised on post conviction.  If an attorney guarantees a certain length of a sentence to induce his client into taking a plea, then the client later gets more time, this can also be an issue in post conviction.

Do not take the decision whether or not to plead guilty likely.  Often times, we receive calls many years later from clients we did not represent at trial seeking to have a guilty plea undone.  It’s not easy to undo what has been done.  It’s easiest to simply get good advice about whether or not to plead guilty up-front.  Hiring the right criminal lawyer, even if you know you are thinking about simply pleading guilty, is important.  There are numerous concerns and issues to weigh with qualified counsel before making such an important decision.  We at Warnken, LLC used to have a very active criminal practice in the Baltimore, Maryland area.  However, as time has gone on and my son takes a more active role in the practice, we’ve switched our focus to other areas like workers’ compensation.  We still handle select criminal matters, though.  Furthermore, if we cannot handle your criminal case, we can refer you to someone who can.

In conclusion, please understand the importance of weighing your options when deciding whether or not to plead guilty to a criminal offense.  The decision should be rooted in much contemplation with the benefit of good counsel.

Byron Warnken at Baltimore Bar Library

On July 17th, I was able to speak at the Baltimore Bar Library about the updates to the criminal law of Maryland in the past year since my treatise was published.  It was a privilege and an honor.

It was remarkable how quickly the year since the original publication went by.  Ultimately, I decided to make the first annual update to the treatise available for free on the book’s webpage on warnkenlaw.com.  The response has been exceedingly positive.  If you have not downloaded the update, you are welcome to at any time.  No waiting, no paying.  If you haven’t gotten the full set from Amazon, you can do that at any time too.  A little waiting, a little paying.  Hopefully, though, worth its weight in gold.

Thanks to the Baltimore Bar Library and to Lou Curran.

Maryland Criminal Procedure

For 40 years, the Supreme Court’s jurisprudence has been strongly pro-government on issues of Fourth Amendment search and seizure.  On June 25, 2014, in Riley v. California, 2014 WL 2864483, the Supreme Court ruled 9-to-0 in favor of the Defendant in two companion “cell phone” cases.

Background

To comply with the Fourth Amendment, police must conduct searches and seizures (1) with a search warrant issued by a neutral and detached magistrate; or (2) pursuant to one of the judicially recognized exceptions to the warrant requirement.  One exception to the warrant requirement is “search incident to a lawful arrest,” which was recognized by the Supreme Court in Chimel v. California, 395 U.S. 752 (1969).  Over the years, the “search incident to a lawful arrest” exception has been the most pro-prosecution exception to the warrant requirement.  The predicate to this exception is a valid underlying arrest, in which the officer (1) arrests pursuant to a validly issued arrest warrant, or (2) arrests based on probable cause to believe the arrestee is about to commit, is committing a crime, or has just committed a crime.

The rationale for the search incident exception is the need for the arresting officer to (1) seize weapons that the arrestee could use to harm the officer or other innocent persons, or (2) prevent the arrestee from destroying evidence of the crime for which arrested.  The search incident exception permits the arresting officer to seize such items if they are within the area of the arrestee’s immediate control, i.e., his lunge, reach, or grasp.

By the 1970’s, the search incident exception had outlived the rationale that created that exception.  This means that courts did not really examine whether the arrestee could actually reach the weapons or the evidence that the arresting officer seized.  Search incident was generally applied per se in favor of the prosecution.  In the context of a person arrested in a vehicle, the Supreme Court was likewise pro-prosecution.  In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court expanded the search incident exception, in the context of a vehicle, by holding that everything in the interior of a vehicle is within the lunge, reach, and grasp of the arrestee, even though, by the time of the search, the arrestee would have been arrested and removed from the vehicle.

First in Arizona v. Gant, 556 U.S. 332 (2009), and now in Riley, the Supreme Court has taken away from police the carte blanche authority that police have generally had since 1969 under the search incident exception.  Under Gant, if a person in a vehicle is arrested, and the arrestee is not physically secured by police, police may search anywhere within the arrestee’s lunge, reach, and grasp.  If, on the other hand, as in Gant, the arrestee has been taken from his vehicle, has been handcuffed, and has been secured in a police vehicle, such that it is unrealistic for the arrestee to obtain weapons or evidence, police may not conduct a search incident in the interior of his vehicle.

Riley v. California & United States v. Wurie

In Riley, a state case from California, police stopped Defendant for a traffic violation.  By the conclusion of the stop, Defendant was arrested on a weapons charge.  Once police arrested Defendant, police conducted a search incident to a lawful arrest.  The search incident produced a cell phone in Defendant’s pants pocket, which police seized.  The arresting officer accessed information on the cell phone and noticed, on the cell phone, there was repeated use of a term associated with a street gang.  Two hours later, at the police station, a detective, whose specialty is gang activity, examined the cell phone’s digital content.  Based on the information found in the cell phone, police connected Defendant with a shooting and sought enhanced sentencing based on gang membership.  Following denial of Defendant’s motion to suppress, he was convicted, which was affirmed by the state appellate court.  The Supreme Court granted certiorari to Riley.

The companion case in the Supreme Court, Wurie, was a federal case.  Police arrested Defendant, having observed him participate in a drug transaction.  At the station, police seized Defendant’s cell phone and saw that it had received multiple calls from a source identified as “my house.”  Police opened the cell phone, accessed the phone’s call log, determined the phone number associated with the “my house” label, and traced the phone number to what police believed was Defendant’s apartment.  Police obtained a search and seizure warrant for the apartment, where they found drugs, a firearm, ammunition, and cash.  Defendant was charged with drug and firearm offenses.  Following denial of Defendant’s motion to suppress, he was convicted.  The First Circuit reversed his conviction.  The Supreme Court granted certiorari to the Government.

In Riley (and its companion case), the Supreme Court held that generally, without a search and seizure warrant, police are prohibited from searching the digital information on a cell phone that is seized during a search incident to a lawful arrest.  In its analysis, the Court balanced the privacy interest of the arrestee against the Government’s need for the information in the cell phone and its contents.  The Court held that (1) digital data cannot be used as a weapon or assist the arrestee in effectuating an escape, and (2) there was no reason to believe that the cell phone contained evidence of the crime for which the arrestee had been arrested, with the arrestee having the power to destroy such evidence.

The Supreme Court was particularly concerned with the substantial privacy interests at stake for the more than 90% of the population that uses cell phone containing digital data.  Cell phones have immense storage capacity, i.e., millions of pages of text, thousands of pictures, hundreds of videos, and a lifetime’s worth of banking and personal information, all of which can be maintained for years. Moreover, data accessed on the cell phone may be stored remotely.  The Court stated that cell phones are not just technological conveniences.  They hold the privacies of life.

The Court emphasized that its holding does not mean police cannot obtain information contained in a cell phone.  What it means is that police are prohibited from obtaining digital information that is contained in a cell phone unless police obtain a judicially authorized search and seizure warrant.  The Court noted, when justified, warrants are easy to obtain.  In order to obtain such a search and seizure warrant, police must have probable cause to believe that particularly named fruits, evidence, and/or instrumentalities of a crime are in the cell phone.  The Court also noted that, depending on the facts of a particular case, police may be able to make use of the “exigent circumstances” exception to the warrant requirement, meaning that there is an emergency that cannot wait for a search and seizure warrant to be obtained.

I spent about 35 years completing my treatise, Maryland Criminal Procedure.  There are more than 10,000 cases, rules, and statutes.  Thankfully, I had someone else complete those massive tables.

After 35 years to get the first edition done, I managed to complete the first annual supplement in only one year.  Of course, I only had one year of cases, rules, and statutes to analyze.  I hope to get the second annual update done faster, but something tells me it will probably take the whole year.  I asked the Rules Committee and all 22 appellate judges if they could condense this year into ten months so I’d have a little time to bring it all together.  My request received no response.

The good news is I have made the first annual update free.  Completely free.  It can be downloaded from www.warnkenlaw.com/book.  It is a PDF and, therefore, easily searchable.  It can be saved on a desktop, printed out, or simply skimmed.  It’s best to review the supplement when the book is reviewed.  Case law, of course, is constantly tweaked and refined, if not outright overruled.  If the law you need was made or refined in 2013-2014, having the annual update on hand is important.

I have always hated adding supplement pages to legal books, and I knew I didn’t want this book to be that.  However, there are benefits to such a system.  I also knew I definitely didn’t want pocket parts, though there are benefits to that system as well.  Having a three volume, hardbound treatise, it was too expensive for the average practitioner to replace every year.  After much deliberation, with some of that deliberation coming after the initial publication, I figured if I did two or three annual supplements available as a free download in between book editions, we’d all get the best of all worlds.  Hopefully you agree.

In addition to the annual update, the book is now available as a kindle e-book in the Amazon kindle store.  The ebook edition can be taken into meetings, on the road, or in court with ease.

SCOTUS Plays Fast and Loose with Consent Search

In the era of the Warren Court in the 1960’s, the Supreme Court held that, searches and seizures were per se unconstitutional unless the police obtained a warrant, subject to a very few, carefully delineated, and well guarded, exceptions to the warrant requirement.  Nearly a half century later, the Fourth Amendment had evolved to the point that exceptions to the requirement for a warrant far outpace the warrant requirement itself.

The Evolving Fourth Amendment

I am the author of Maryland Criminal Procedure, a three-volume, 1,800-page, 34-chapter treatise.  Most search and seizure law comes from Supreme Court cases interpreting the Fourth Amendment.  Thus, in the context of search and seizure, Maryland criminal procedure and federal constitutional criminal procedure are essentially the same.  I have been a law professor for 37 years.  I have taught seven courses, all with my own material.  My three main courses are Criminal Law, Constitutional Criminal Procedure I (CCPI), and Constitutional Criminal Procedure II (CCPII).  Sixteen of the 28 classes in CCPI cover Fourth Amendment search and seizure.  Two of the 16 classes cover the “applicability” of the Fourth Amendment.  Twelve of the 16 classes cover “compliance” with the requirements of the Fourth Amendment, when the Fourth Amendment applies.  Two of the 16 classes cover Fourth Amendment “remedies,” when the Fourth Amendment has been violated.  Of the 12 classes covering Fourth Amendment “compliance,” two classes address the warrant requirement, and ten classes address the exceptions to the warrant requirement.  That gives you some sense of the five-decade evolution of the Fourth Amendment.

The two classes on Fourth Amendment applicability demonstrate that the Fourth Amendment is applicable in many fewer circumstances than it once was.  The two classes on Fourth Amendment remedies demonstrate that, when the Fourth Amendment is violated, there is much more likelihood of no remedy today, for the violation of the Fourth Amendment, when compared to 50 years ago.  The twelve classes in the middle – Fourth Amendment compliance – demonstrate that it is much, much easier for police to comply with the Fourth Amendment than it ever was.  The Fourth Amendment issues are litigated when the prosecutor wishes to use evidence that the Defendant claims was seized illegally.  The admissibility of that evidence, when there is a motion filed to suppress evidence, alleging that it was seized in violation of the Fourth Amendment, is litigated in a pre-trial motions hearing, which is heard by the trial judge and not by a jury.

Consent Searches

The second of the two classes on Fourth Amendment applicability addresses the concept of consent searches.  Police often claim that the Defendant gave the police consent to search.  The first consent issue is whether there actually was consent.  The officer testifies that the Defendant gave consent to search the home, the vehicle, the brief case, whatever, and the Defendant testifies that he never gave consent to search.  That is a factual dispute to be resolved by the trial judge in the suppression hearing.  Assuming that consent was actually given, the next issue is whether the Defendant voluntarily consented, viewing all of the evidence under the “totality of the circumstances.”  Some constitutional rights may only be “waived” by the Defendant if the Defendant makes a “knowing and intelligent” waiver.  For example, under Miranda v. Arizona, a Defendant under arrest has the right to an attorney present during questioning.  This right can only be waived if the Defendant makes a “knowing and intelligent” waiver of his right to counsel during questioning.  That is why, under Miranda, the police must read to the Defendant his four Miranda rights and why the Defendant cannot give up those rights unless the rights were properly explained to the Defendant and the Defendant then knowingly and intelligently waived those rights.

Not so with the Fourth Amendment right to be free from unreasonable searches and seizures.  A Defendant can give up his rights against unreasonable searches and seizures even if he does not understand what those rights are.  The police do not have to explain to the Defendant that he has a right to resist a police search.  The average person probably does not understand that he does not have to allow a unformed and armed police officer into his home without a warrant.  The average person, in a traffic stop, may be asked by the police whether he has any drugs or weapons in his car.  If he says “no,” the police may then say, “because you do not have any drugs or weapons in your car, you won’t if I look around, do you?”  So, that second consent issue is whether, if the Defendant consented, whether his consent was given voluntary, i.e., voluntary under a totality of the circumstances as opposed to being actually or subtly coerced by police, who are permitted to use their superior position and trickery to obtain consent.  The third consent issue is, if the Defendant actually consented, and the consent was voluntary, what was the scope of the consent given.  Opening the front door, and voluntarily allowing the police to enter, does not mean that the Defendant consented to the police searching in the underwear drawer in the dresser in the bedroom upstairs.  The final consent issue is, if the evidence is to be admitted against someone other than the person who gave consent, did the “consenter” have the actual authority, or at least the constructive authority, to grant consent to the police that binds someone else who is not present at that time.  That brings us to Fernandez v. California.

Fernandez v. California

If two people live together, the Supreme Court holds that each of them has assumed the risk that the other one may allow a stranger to the relationship into a place in which those two have joint access.  If I take the risk that my spouse might allow outsiders into the property we share, e.g., our home, then I assume the risk that she will allow the police in as well.  Since 1964, the Supreme Court has held that, if only one partner is present, and that person has access to the entire premises, that person may give consent to the police to enter and search.  In 2007, the Supreme Court in Randolph v. Georgia, addressed that issue in the context of both persons being present, with one person telling the police they may enter and search, and the other person expressly telling the police they may not enter and search without a search warrant.  The Court held that, in that context, whatever evidence the police find is admissible against the consenting party, but it is not admissible against the non-consenting party.

In 2014, in Fernandez v. California, the police came to the home.  The female said that the police may enter and search.  The male stood in the doorway and said that the police may not search without a search warrant.  The police believed that there was evidence of assault, and they arrested the male and took him away.  The police then returned to the home and obtained consent to search from the female.  The Supreme Court ignored the express rejection of consent that the Defendant had just recently given.  The Court held because the male (who just rejected consent) was not present, if the female gave consent, it was a valid consent as against both the male and the female.  Of course, the male was not present.  The police had arrested him, without a warrant, had taken him away, and made him become “not present.”  For the Supreme Court to ignore the fact that the Defendant had just expressly refused to give consent is disingenuous.

Well, I was not in a car with drugs but if you’re reading this, maybe you were.

If I am in a car that is stopped, and there are drugs, what can the police do to me?  The answer to that question depends on a couple of variables.  What is your status and where are the drugs?