Constitutional rights

December 11, 2015

Why Donald Trump is so dangerous – why it is necessary that civil rights be protected by a Constitution – and why we are fortunate to have inherited constitutionally protected rights

This week Donald Trump, the leading Republican contender for President, proposed banning all Muslims from entering the country, as one of his solutions to deal with ISIS inspired terrorism in the homeland. This bigoted and anti-American proposal, on top of his anti-Mexican, misogynistic, and crude comments have only enhanced his standing in the polls, to the shame of us all. His reliance on demonstrably false information to support his claims is no hindrance to him or his followers. In response, I commend to you a piece by Kareem Abdul-Jabbar in Time Magazine. His article, What Donald Trump and ISIS Have in Common, explains how Trump’s proposal is against everything we stand for, and is unconstitutional to boot.

We have seen this before. History has taught us that what starts out as harmful speech targeting a race, religion, or ethnic group, frequently evolves into discriminatory behavior with real consequences to members of the targeted group. This type of damage has occurred too many times to recount, at its extremes leading to the worst kinds of violence and genocide. The appeal to emotions, rather than reason, can entice the best of us to do bad things. That is why we are so fortunate to live in a country governed by the rule of law with constitutionally protected freedoms and rights.

When a sizeable portion of the electorate is impelled by fear or demagoguery to act lawlessly or even to change the laws to target a race, religion or ethnic group, the Constitution provides a brake. Similarly, when the public’s reaction to crimes impels the State to target an individual who everyone “knows” is the perpetrator or has committed a crime, the law requires evidence, proof beyond a reasonable doubt, and honor to our rules requiring adherence to First, Fourth, Fifth, and Sixth Amendment protections that minimize the risk that an innocent person would be convicted. Freedom of speech, religion, and assembly, against unreasonable searches and seizures, against compelled self-incrimination, the right to counsel, notice, jury trials, due process and equal protection of the laws protects us all. Our Constitution minimizes the risk that a lynch mob led by the likes of Donald Trump would ever subvert the fairness and even handedness of our laws or our criminal justice system. We can only hope that the Constitution continues to protect us as we face new challenges posed by cynical or mindless opponents.

November 25, 2015

Hawaii Supreme Court agrees consent to submit to a breath test is invalid where refusing is a crime

by Goldstein & Stamm, P.A.

The Hawaii Supreme Court announced its decision today in State v. Won. The court held that where a suspect in a DUI case is told that it is a crime to refuse to submit to an alcohol test, that consent to submit to the test is coerced and invalid because it is not voluntary. The Fourth Amendment requires that searches be conducted pursuant to a search warrant or the government must rely on an exception to the warrant requirement. In most DUI cases, the government relies on consent to justify warrantless breath and blood tests. However, some jurisdictions have criminalized refusal to submit to a test, providing that refusal can result in a jail sentence.

The Hawaii court said:

Where arrest, conviction, and imprisonment are threatened if consent to search is not given, the threat infringes upon and oppresses the unfettered will and free choice of the person to whom it is made, whether by calculation or effect.30 See id. at 261-63, 925 P.2d at 829-31 (finding that a permissive response to a request to search the defendant resulted only from “inherently coercive” circumstances that were “calculated to overbear [the defendant’s] will”); Pauʻu, 72 Haw. at 508, 824 P.2d at 835 (same). Thus, the threat of the criminal sanction communicated by the Implied Consent Form for refusal to submit to a BAC test is inherently coercive. [Footnotes omitted].

July 9, 2015

The Court of Appeals takes a step forward with Norton

by Goldstein & Stamm, P.A.

The Court of Appeals announced its decision in Norton v. State today. I was privileged to have been local counsel on the amicus brief filed by the Innocence Network in this case. The case was a win for Norton, but more importantly, it was a win for all defendants who wish to confront scientific evidence offered against them in court.

The rules governing application of the Confrontation Clause have been changing over the past few years. A series of cases had helped to expand the ability of defendants to confront scientific evidence: Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming v. New Mexico. These cases required the State to produce in court a chemist who actually tested a defendant’s blood in a DUI case. I was also privileged to have helped to write the amicus brief filed in Bullcoming by the National Association of Criminal Defense Lawyers and the National College for DUI Defense.

Unfortunately, in Williams v. Illinois, the Supreme Court backtracked and ruled that in a DNA case, the State did not have to produce the analyst. However, there was no majority for what became a plurality opinion of four justices. There were also four justices in dissent. The deciding vote was cast by Justice Thomas, who agreed with the dissenting justices with respect to their reasoning but voted to not require confrontation because the document stating what the DNA results were was not sufficiently formal. This confusing alignment of justices brought into question what rule should be applied by the lower courts.

July 5, 2015

Reflections on the Fourth (and Fifth) of July, thank you Justices Ginsburg, Sotomayor, Kagan, Kennedy, and yes Justice Scalia

by Goldstein & Stamm, P.A.

In this blog, I want to weave a couple of strands of thought together here on the Fourth and Fifth of July, as I complete the 2015 update for the 8^th edition of my Maryland DUI Law.

As defense lawyers, we are trained to look for the good facts in our cases, and the good traits of our clients, so that we may use the good to persuade judges and juries at trial, and judges at sentencing. What we find is that there are very few people that are all good or all bad. At the same time many of us, through one path or another, end up advocating on particular issues. The issues we may end up being most involved with are not necessarily the most noble, but with so many issues and so little time, we must pick and choose.

Two issues that I am particularly proud of having had the opportunity to argue for are Fourth Amendment issues, the constitutional right to be free from unreasonable and/or illegal searches and seizures, and the Sixth Amendment right of confrontation, guaranteeing that witnesses testifying against our clients be present in the courtroom to be cross-examined. I helped to write amicus briefs in both the Fourth Amendment case of Missouri v. McNeely, and the Sixth Amendment case of Bullcoming v. New Mexico. In McNeely, the Supreme Court held that dispensing with a warrant to obtain a blood sample in a DUI case should never be the norm. In Bullcoming, the Supreme Court held that the actual chemist who tested the defendant’s blood must be present in court for cross-examination. These are important cases, and the government and many lower court judges are doing everything they can to work around them.

April 21, 2015

Supreme Court Holds The Line Against Unconstitutional Detentions

by Goldstein & Stamm, P.A.

Today, the Supreme Court released its decision and opinion in Rodriguez v. United States. This was not just a defense win. It was a win for anyone who travels in a car and may be stopped by the police for a traffic violation. The six justices in the majority were Ginsburg (who wrote the opinion), Roberts, Scalia, Kagan, Sotomayor, and Breyer.

Rodriguez had been stopped for driving on the shoulder. After the officer had checked his license and registration, found no warrants, and wrote a warning and handed it to Rodriguez, he required Rodriguez to stay at the location for a dog sniff of his car. The dog signaled that the car had drugs and police recovered the drugs.

The problem was that the officer had no further basis to suspect Rodriguez had done anything wrong at the time he continued to detain Rodriguez for a dog sniff. The purpose of the traffic stop had been completed. The 8th Circuit Court of Appeals found that the extended detention was de minimus and not sufficient to require suppression of the evidence found.

The Supreme Court reversed. It said:

We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation.

What this means is that police can investigate other crimes during the time that it would take to write a ticket, but cannot use a search for which the police do not have articulable reasonable suspicion to extend that time. They cannot dilly dally or delay writing the ticket in order to conduct an illegal search.
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March 4, 2015

Stamm Testifies Before the Maryland House Judiciary Committee

by Goldstein & Stamm, P.A.

On March 4, 2015, Leonard Stamm testified in opposition to House Bill 532 which would require officers to tell suspected drunk drivers in a fatal or life threatening injury crash that they are required to submit to an alcohol test. Here is the written version of his testimony:

My name is Leonard Stamm. I have been in private practice defending persons accused of drunk driving and other crimes for over 30 years. I am currently Assistant Dean of The National College for DUI Defense, a nationwide organization with over 1300 lawyer members. I am a former president of the Maryland Criminal Defense Attorneys’ Association. In 2014, I had the privilege of co-authoring an amicus brief filed by the National Association of Criminal Defense Lawyers and The National College for DUI Defense in the Supreme Court case of Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) . The Supreme Court held that a drunk driving arrest does not automatically create exigent circumstances that would relieve the police of their obligation to first seek a search warrant based on probable cause before compelling a driver to submit to a blood test.

For cases where the arrest occurred before April 17, 2014, the day that McNeely was decided, many courts have upheld admission of tests on the ground that where police objectively reasonably relied on a statue not yet held to be unconstitutional, that it would be on it inappropriate to apply the exclusionary rule and suppress the blood test. However, for cases where the arrest occurs after April 17, 2014, that claim of objectively reasonable reliance on an unconstitutional statute is less likely to prevail. The end result of passing the proposed amendment to § 16-205.1 could ironically be that tests showing the driver to be impaired by alcohol and/or drugs would likely be suppressed and withheld from the fact-finder.
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February 2, 2015

Proposals for New DUI Laws in 2015

by Goldstein & Stamm, P.A.

1. Change “reasonable grounds” in § 16-205.1 to “probable cause”

The Fourth Amendment requires articulable reasonable suspicion to stop a vehicle, Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) and probable cause to effect an arrest. Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985). However, the Court of Appeals has made it clear that the Fourth Amendment does not apply in MVA hearings. Motor Vehicle Admin. v. Richards, 356 Md. 356, 739 A.2d 58 (1999).

The officer is not required to recite the basis for the stop on the sworn statement submitted to the MVA in support of a suspension. Motor Vehicle Admin. v. Lipella, 427 Md. 455, 48 A.3d 803 (2012). The driver may only prevail on the ground of a bad stop if the driver shows the officer acted in bad faith in effecting the stop. Id.; COMAR 11.11.02.10(H).

Transp. § 16-205.1 requires an officer to detain the driver and request a test if the officer has “reasonable grounds” to believe the driver is driving while impaired. In Motor Vehicle Admin. v. Shepard, 399 Md. 241, 923 A.2d 100 (2007) the Court of Appeals construed “reasonable grounds” to be the equivalent of articulable reasonable suspicion to believe the driver is impaired. Thus while the Fourth Amendment requires the officer to have probable cause before making an arrest, § 16-205.1 requires the officer to “detain,” i.e., effectively arrest the driver, with articulable reasonable suspicion. Thus the officer is given conflicting instructions, to not make and to make an arrest at the same time, if there is only articulable reasonable suspicion.

Cases after Shepard have considered various factual scenarios, each sustaining suspensions with less evidence than the previous case, lowering the evidence required to sustain a finding of “reasonable grounds” and weakening the protection against unreasonable detention encompassed within the Fourth Amendment. E.g., Motor Vehicle Admin. v. Shea, 415 Md. 1, 997 A.2d 768 (2010)(seatbelt stop, moderate odor, performed standardized field sobriety tests, but no results given); Motor Vehicle Admin. v. Sanner, 434 Md. 20, 73 A.3d 214 (2013)(strong odor of alcohol coupled with having been involved in an accident). The most recent case from the Court of Appeals on this issue, Motor Vehicle Admin. v. Spies, 436 Md. 363, 82 A.3d 179 (2013), held that if the officer claims to detect a moderate odor of an alcohol beverage, reasonable grounds exist.

The holding in Spies is contrary to holdings from other states. For example, see Saucier v. State, 869 P.2d 483 (Alaska Ct. App. 1994) (slight weaving across line, “normal” odor of alcohol beverage, admission of couple drinks, and refusal of field tests); Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992) (summary judgment affirmed in suit against officer for releasing defendant who subsequently killed two people); State v. Kliphouse, 771 So.2d 16 (Fla. App. 2000) (unconscious motorcyclist who did not cause accident had odor of alcohol beverage); State v. Taylor, 444 N.E.2d 481 (Oh. App. 1981) (speeding and odor of alcohol beverage); People v. Royball, 655 P.2d 410 (Colo. 1982) (odor of alcohol alone, accident without fault established); but see, State v. Gillenwater, 980 P.2d 318 (Wash. App. 1999) (fatal accident, driver not at fault, odor of alcoholic beverage on both motorist and deceased passenger, three opened beer cans).

The Ohio Court of Appeals, in State v. Taylor, 444 N.E.2d 481 (Ohio Ct. App. 1981) stated:

The mere odor of alcohol about a driver’s person, not even characterized by such customary adjectives as “pervasive” or “strong,” may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony. For better or worse, the law prohibits drunken driving, not driving after a drink.

Id. at 482.

In City of Hutchinson v. Davenport, 54 P.3d 532 (Kan. App. 2002), the Kansas Court of Appeals held that the odor of an alcoholic beverage on the defendant’s breath, without any other evidence was insufficient to support the stop of the defendant’s vehicle. In that case the defendant drove to a local jail to secure bond for a friend who had been arrested. When he left a police officer, who detected the odor of an alcohol beverage on the defendant’s breath, advised him not to drive and the defendant agreed. Not long afterward, the same officer saw the defendant driving his vehicle and stopped him.

The court stated:

Even with the lesser requirements of the reasonable suspicion standard, the trial court properly determined that there were no articulable facts which create a suspicion that Davenport was driving while under the influence or was involved in any other criminal activity. Even if we combine the knowledge of Henderson and Miller, the only facts suggestive of unusual conduct are that Davenport had alcohol on his breath and that he stated he was walking. Neither of these facts by themselves or together create a reasonable suspicion that justified Miller stopping Davenport in the absence of some indication that he was intoxicated and too impaired to drive.
The City cites many cases to bolster its argument that the stop was proper. In each situation where the court found the stop to be proper, however, there were some facts which indicated that the defendant had engaged in some illegal activity prior to being stopped. Here, no such facts exist. Alcohol on one’s breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking.

Davenport, 54 P.3d at 535.

A chief danger of the lower standard and eased application of that standard is that a number of drivers who are not impaired will be stopped and detained, and as a result of reasons that may be consistent with innocence will refuse to submit to a breath test and will face license suspension and/or ignition interlock. In counsel’s experience, people refuse for a myriad of reasons, including, but not limited to, misunderstanding the advice of sanctions provided by the police or being improperly induced by the officer to refuse the test. This was recognized by the Maryland State Bar Association Criminal Pattern Jury Instruction Committee in the jury instruction for refusal which states:

MPJI-Cr 4:10.5
Driving Under the Influence of Alcohol and Driving While Impaired by Alcohol — Effect of Refusal to Submit to Blood or Breath Test

You have heard evidence that the defendant refused to submit to a test to determine [his] [her] [alcohol level] [the presence of drugs or a controlled dangerous substance]. You must first decide whether the defendant refused to submit to a test. If you find that the defendant refused to submit to a test, you must then decide whether this refusal is evidence of guilt. Refusal to submit to a test may be based on reasons that are consistent with innocence or other reasons that are consistent with guilt. In order to decide whether the defendant refused to submit to a test and what, if any, weight to give the refusal, you should consider all of the evidence in the case.

If § 16-205.1 were amended to replace the phrase “reasonable grounds” with “probable cause” in every location where it appears, the obligations imposed on police officers and protections available to drivers would be the same as is provided by the Fourth Amendment. Additionally, the danger that innocent drivers will be swept up in the broad drunk driving dragnet would be reduced.
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December 23, 2014

Heien v. North Carolina – Ignorance of the law is no defense – unless you are a cop

by Goldstein & Stamm, P.A.

Last week the Supreme Court decided the case of Heien v. North Carolina. In an 8-1 decision, the Court decided that even though an officer stopped a driver for conduct that was later decided NOT to be illegal, that the officer’s objectively reasonable belief that the conduct was illegal saved the stop from violating the Fourth Amendment. Surprisingly, some of the justices that can usually be counted on to protect the privacy rights of Americans, namely Justices Scalia (yes he is one of the better ones on Fourth Amendment issues), Ginsburg, Kagan, and, frequently Kennedy, failed to do so in this case. Only Justice Sotomayor dissented from the decision in Heien.

The Heien case dealt with what I will call the two versus three brake light issue. Many states enacted laws requiring two brake lights on cars and also laws requiring all equipment on a car to be working. The two brake light laws were enacted at a time when cars only had two brake lights. Since the enactment of these laws, many cars have been made with three brake lights. As is not uncommon, in many states the law has lagged behind technology. In those states, there has been a legitimate debate about whether a car with three brake lights, and one out, was in violation of the law.

In Heien, the officer stopped a car with three brake lights, and one out. Drugs were found in the car, which is why Heien challenged the stop. The trial court denied his motion to suppress and Heien appealed. Subsequently, the North Carolina Court of Appeals held that two working brake lights were all that was required and reversed. (Maryland requires three). The North Carolina Supreme Court reversed and upheld the conviction, even though the State did not challenge the intermediate court’s ruling on the brake light law. So Heien appealed to the Supreme Court.

One might have thought that when the North Carolina intermediate appellate court ruled that Heine’s vehicle was not in violation of North Carolina law, and that the ruling was not challenged, that it’s conclusion that the stop was illegal would have been upheld, even though the quesstion was debatable at the time the officer stopped Heien. However, the Supreme Court ultimately held that because the officer’s belief that Heien’s vehicle was violating North Carolina law although wrong was objectively reasonable, the stop did not violate the Fourth Amendment. It is important to note that the Court did not say in Heien, as it has said in some cases, that although the officer violated the Fourth Amendment that the exclusionary rule should not apply where a statute or court decision requires the officer to act in a way that is later held to violate the Fourth Amendment. In Heien, the Court held that the officer’s stop did not violate the Fourth Amendment.

The decision is troubling for a number of reasons. One is that frequently high court decisions get watered down or misunderstood by officers, prosecutors, and lower courts resulting in an overall diminution of our Fourth Amendment freedoms, and hence an increase in the number of times drivers observably violating no law will be stopped and detained by police, and the stops will later be upheld by courts. In the past, an officer could not rely on unsettled legal issues to avoid the application of the exclusionary rule to a search and/or seizure. As Justice Sotomayor points out, there is not really any support in prior cases for rewarding an officer’s mistake of law. And there is little incentive for courts to resolve questions of law if they only need to decide if the officer’s belief that the law was violated was “objectively reasonable.”
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June 8, 2014

Stamm Goes On Al Jazeera News to Discuss Missouri v. McNeely

by Goldstein & Stamm, P.A.

aljazeerainterview6.5.14(3).PNG

On last Thursday, June 5, 2014, Leonard Stamm went on Al Jazeera America to discuss last year’s Supreme Court decision in Missouri v. McNeely. He was interviewed by reporter John Henry Smith.

JHS: Drivers stopped on suspicion of driving under the influence in Tennessee are sometimes forced to submit to a blood test. The State allows officers to demand a driver give blood if they refused to take a breathalyzer test. Tennessee is not the only place where this is being done. Wyoming and some parts of Atlanta have similar laws on the books. And Georgia is considering allowing it statewide. It’s a controversial practice that critics say is a violation of a person’s right to privacy. Joining us to discuss the legal implications is Leonard Stamm, a criminal defense attorney, and executive committee member with the National College for DUI Defense. He’s in Washington, D.C. this morning. Mr. Stamm, how can law enforcement pull people over suspected of DUI and demand a blood sample. Is that not a violation of a person’s Fourth Amendment right against unreasonable searches and seizures?

LRS: Well last year the Supreme Court decided the case of Missouri versus McNeely, and the Supreme Court held that before police can take blood from somebody that unless there’s some kind of emergency that impedes their ability to get a warrant they have to call a judge and get a warrant before they can stick a needle into and pierce somebody’s skin to get a blood sample.

JHS: Well in Tennessee, if a driver refuses a breathalyzer or a blood test, police officers can get a judge to issue the warrant and force the person to comply. Can a suspect be physically restrained and forced to give blood?

LRS: Well yes they can but it has to be done in a medically appropriate manner. So I think that if the police officer is holding somebody down on the side of the road and poking them with a needle, or has been documented in other news stories, on the floor of the jail or put in a chair and have a hood put over their head, I don’t think courts will approve those kinds of procedures. But if it’s done in a medically appropriate manner – what the Constitution requires, what the Fourth Amendment requires is that before police do it they just can’t poke somebody without getting a judge to approve it first so if a judge approves it, then the second question is, the first question is: is there probable cause for the search. If the judge approves it, there’s going to be a requirement that they perform the test in a medically appropriate manner.
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May 21, 2014

Chipping Away at Our Rights – Deering v. MVA

by Goldstein & Stamm, P.A.

The Court of Appeals announced its decision today in Deering v. MVA. When a driver is arrested for DUI and asked to take a breath or blood test in Maryland, and the driver’s reasonable request to consult with a lawyer before deciding is denied, the driver may not argue at the driver license suspension hearing that the denial of counsel requires not suspending the driver’s license.

The Court noted that the cases relied upon by the Court of Appeals in its 1984 decision, Sites v. State, which recognized the right to consult with counsel under the federal Constitution’s 14th Amendment’s due process clause, have mainly lost their authority. However, Sites also rested on the state due process clause. The Court said:

Although Sites rested its holding on both the Fourteenth Amendment of the federal Constitution and Article 24 of the Maryland Declaration of Rights, its analysis focused almost entirely on cases construing the federal Constitution. Given the scarce support for that analysis of the due process clause of the federal Constitution, the Sites Court’s rationale rests on a precarious footing. Of course, because the Sites decision was also based on Article 24, it is conceivable that this Court could hold that the State constitution confers such a right, even if the federal Constitution does not. Cf. DeWolfe v. Richmond, 434 Md. 444, 76 A.3d 1019 (2013) (holding that an indigent defendant in a criminal prosecution is entitled, under Article 24 of the Maryland Declaration of Rights, to State-furnished counsel at an initial bail hearing before a District Court commissioner without deciding whether that right also emanates from the due process clause of the Fourteenth Amendment). In any event, we need not decide the continuing vitality of Sites to decide this case.

Even if Sites remains good law under a State constitutional theory, the ultimate question before us is whether the violation of any such right affects the imposition of an administrative sanction under TR §16-205.1.