Raccoons are still safe

By: Elizabeth Hays

National security, equal rights, healthcare, and road kill are top priorities for any state government, at least according to Maryland Governor Larry Hogan.[1]  When the headline first appeared – “Hogan vows to fight Maryland ‘road kill’ law” – I pictured a poor little raccoon being hauled away after being hit by some in a Ford Bronco.  If you keep reading, however, you find out that it has absolutely nothing to do with Rocky the raccoon and everything to do with the governor trying to overcome road blocks in his transportation initiatives.[2]

In the 2016 legislative session, House Bill 1013, more affectionately called the ‘Road Kill Law,’ was passed and became law after overriding Governor Hogan’s veto.[3]  The new law created a scoring system for approval of Maryland transportation projects.[4]  According to the Governor, the new mandated scoring system forces the cancellation of 66 out of 73 top transportation projects; yet, Assistant Attorney General David Stamper doesn’t necessarily agree with Governor Hogan’s assertion.[5]  He stated, “the administration can pick a project with a lower score over a project with a higher score if it provides, in writing, a rational basis for the decision.”[6]  If you believe that the legislation is only advisory, Hogan states, then you are ignorant of the facts.[7]

Joining the exhilarating political sparing match, Delegate Brooke Lierman, the freshman Democrat from Baltimore City, who led debate on the bill in the House, said “Gov. Hogan seems to be creating his own fake news. It’s just a score, and that shows to us, the taxpayers, how we’re spending our money in a transparent way.”[8]  Adding to the continued contradiction, Maryland Department of Transportation Secretary Pete Rahn agreed with the governor that the there was no possible way to avoid the cancellations of the projects under this new law.[9]  In a legislative hearing held on November 18, 2016, he stated, “The one-size-fits-all ranking system mandated by this law is wrong for Maryland drivers, wrong for employers relying on needed improvements to local roads and bridges, wrong for tourists and visitors traveling to our state, and wrong for Maryland taxpayers who expect their dollars to be spent in an fair and equitable manner on projects that will improve their daily lives.”[10]

The repeal of the ‘road kill’ law is deemed a top priority by the Hogan administration and will likely produce more and more controversy while the facts continue to be sorted out.  As far as actual road kill law in Maryland is concerned, you still need a salvage permit for removal of animals off roadways.[11]  While it is uncertain what the 2017 legislative session will bring, for now, raccoons are still safe.


Elizabeth Hays is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum and is Co-president of UBSPI. Her unnamed-3legal interests include, administrative and military law.  She can be reached at elizabeth.hays@ubalt.edu

Advertisements

Maryland Governor Doubles Down on Victims’ Rights

By: Jared Lerner

Out of the darkness comes some light, as Maryland Governor Larry Hogan provided a small beacon of hope for crime victims with his new Justice for Victims Initiative.  There is still plenty of work to be done for victims’ rights, but at least one person is taking a step in the right direction.  On Thursday, January 12, 2017, Maryland Governor Larry Hogan announced his Justice for Victims Initiative.[1]  Governor Hogan stated, “Making Maryland safer begins with making sure we have a criminal justice system that holds offenders accountable for the harm they cause, while also supporting victims and the community in the process of healing.”[2]  The Republican governor is no stranger to victims’ rights, as they continue to be a part of his focus while in office.  In the 2016 legislative session, Governor Hogan worked with the Maryland legislature to enact criminal justice reform by way of the Justice Reinvestment Act (“JRA”).[3]  The JRA reformed Maryland’s restitution system; making sure victims are compensated for financial loss from crimes.

The Justice for Victims Initiative includes four proposals: (1) Repeat Sexual Predator Prevention Act of 2017; (2) Protecting Victims of Sex Trafficking Act of 2017; (3) Transitional Housing Assistance Program; and (4) Repeat Drunk Driving Offenders Act of 2017.[4]  The Repeat Sexual Predator Prevention Act, a bipartisan measure, “will allow courts to admit evidence of a defendant’s prior history of sexual assault convictions during prosecutions for subsequent sexual offenses.”[5]  The Protecting Victims of Sex Trafficking Act will expand the definition of sexual abuse to include sex trafficking, including sexual abuse committed by a parent or an individual acting in a supervisory capacity.[6]  The Transitional Housing Assistance Program will direct up to $5 million in funding to provide up to one year of housing assistance for crime victims.[7]  The Repeat Drunk Driving Offenders Act will make drunk driving a felony for repeat offenders with three or more prior conviction.[8]  It would also make drunk driving a felony for a repeat offender who causes death or life-threatening injury.[9]

Governor Hogan calls the Justice for Victims Initiative “common sense legislation that will help protect the most vulnerable among us, improve services for the victims of crimes, and help us reduce and prevent the number of future victims of crime.”[10] 


unnamed-1Jared Lerner is a third-year law student at the University of Baltimore School of Law. He will graduate in May 2017 with a concentration in litigation and advocacy. He is currently working on a research paper that applies tort principles to company data breaches. Throughout law school, Jared gained practical experience in several practice areas, including trusts and estates, alternative dispute resolution, trial and appellate litigation, and administrative law. Most recently, he served as an honors law clerk at the U.S. Environmental Protection Agency in the Office of Enforcement and Compliance Assurance. Prior to law school, he attended the University of Central Florida where he earned a B.A. in May 2014. Jared can be reached at jared.lerner@ubalt.edu.

Maryland Lawyers May Advertise as Specialists

By: Daniel Weir

On October 13, 2016, the Standing Committee on Rules of Practice and Procedure of Maryland submitted to the Court of Appeals of Maryland a proposed amendment to Rule 19-307.4(a) to remove the prohibition against an attorney from “holding him or herself out publically as a specialist.”[1]   The debate on whether to allow lawyers in Maryland to assert themselves as “specialists” or obtain certifications reflecting a specialty has gone on for over 40 years.[2]  Maryland held out for many years despite Supreme Court decisions observing that attorney advertisements were First Amendment forms of commercial speech.[3]  At the time of the Committee hearing to change Rule 19, Maryland was only one of two states with an outright prohibition on advertising as a specialist.[4]  Many Maryland attorneys were already holding themselves out as specialists on a strictly word-of-mouth basis.[5]

It would seem that the main control over this new rule is an already existing rule – Rule 19.307.1.   The committee indicated that “[a]ll advertising by attorneys is subject to Rule 19-307.1, which precludes attorneys from making a false or misleading communication about the attorney or the attorney’s services and, in relevant part, declares a communication to be false or misleading if it ‘contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.’”[6]

On December 13, 2016, the Court of Appeals of Maryland decided to adopt the Committee’s recommendation.[7]  An argument in favor of the change stated that lawyers who have practiced a particular type of law for a long period of time have earned the right to hold themselves out as specialists.[8]  The argument against the change was that young lawyers who are not yet specialists will have a harder time selling their services to clients if they are not yet specialists; the change could force a new attorney to simply pick one type of law and lock in early to gain the specialist title.[9]  This perspective hints at legal factionalism, whereas before, perhaps someone in a firm could primarily practice criminal law and do some immigration law work as needed.  Whether the lift on the prohibition will aid or frustrate the practice of law in Maryland will be observed when the change goes into effect April 1, 2017.[10]  Only time, and the cases opined by the Attorney Grievance Commission, will set the parameters as to how this change will truly take shape.


DweirDaniel Weir is a 3L Student Editor. Daniel has an interest in criminal and mental health law.  Daniel enjoys exploring the mountains of Western Maryland and performing minor automotive repairs and maintenance on domestic vehicles.  You can view is linkedin here.

What to Know Before Hiring an Exotic Dancer

By: Hillel Cohen 

A person hiring another person often faces the question of whether the hiring person’s status is one of employer or independent contractor.  This is an important distinction because employer-employee relationships are bound to minimum wage laws under the Fair Labor Standards Act (“FLSA”), the Maryland Wage and Hour Law (“MHWL”), and the Maryland Wage Payment and Wage Collection Law (“MWPWC”). [1]  The recently decided Court of Appeals for the Fourth Circuit case, McFeely v. Jackson Street Entertainment, LLC, begins to provide a clearer understanding of the definition of an “employee.” [2]

          In McFeely, an exotic dance club requested all hired dancers to sign agreements entitled “Space/Lease Rental Agreement of Business Space” that classified dancers as independent contractors. [3] The dancers claimed that they were employees and sued the dance club for minimum wage. [4]  The court created an economic realities test that contained were six factors to determine whether dancers were employees or independent contractors. [5] The six factors are:

  1.  the degree of control that the putative employer has over the manner in which the work is performed;
  2. the worker’s opportunities for profit or loss dependent on his managerial skill;
  3. the worker’s investment in equipment or material or his employment of other workers;
  4. the degree of skill required for the work;
  5. the permanence of the working relationship; and
  6. the degree to which the services rendered are an integral part of the putative employer’s business. [6]

Yet, the court did note that this was not a bright-line rule, and, each case would be considered based on the totality of the circumstances. [7]

After applying the factors to the present case, the court concluded that the dancers qualified as employees. [8]  The dance club created the work schedule for the dancers, established operating hours that “controlled the stream of clientele,” and paid for all overhead expenses of the dance club, including wages for all non-performing staff.9  Moreover, the dance club warned the dancers not to charge too much money to their customers and enforced many restrictions on the dancers (i.e., no drinking, smoking, or having family or friends visit them during work hours).10  Accordingly, the dancers were entitled to minimum wage under FLSA, MHWL, and MWPWC. [11]

It is important to note that in this specific case, the dance club was successful in raising a “good faith defense” to liquidated damages after September 2011. [12]  In September 2011, the dance club sought legal advice in response to a lawsuit brought by the dancers, and the club was advised to require all dancers to sign an agreement to acknowledge their status as independent contractors. [13]  However, before that date, the court rejected the dance club’s defense because reliance on legal advice is distinct to ignorance of the law. [14]   The court reasoned that ignorance of the law was not a valid defense, because this would create a substantial disincentive to the employer, i.e., no employer would be motivated to learn and conform to governing labor law. [15]

Although, this case involved exotic dancers, it has relevance for all types of workers.  The court’s six factors will likely be cited as a way to determine if a worker is an employee or an independent contractor.  Therefore, a hirer should be keenly aware of how its instituted rules and regulations may alter the hiree’s status of “independent contractor” versus “employee.”


Hillel Cohen is a third-year day student at the University of Baltimore. He servHillel Cohenes as a Staff Editor for the UB Law Forum. His legal interests include real estate and commercial law. He can be reached at Hillel.Cohen@ubalt.edu. You can view his LinkedIn here.

 

Bike Lanes Invade Baltimore

By: Elizabeth Hays

     Recently, Maryland Avenue has undergone a dramatic change-it’s not additional parking, it’s not a wider road, and it’s not the food truck I keep hoping for-it’s a bike lane.  It’s not just some extra space for a bike to get around cars, but an actual protected lane carved out of the already narrow two-lane road.  To many bikers, this is probably a welcomed change.  To the rest of us, this is one more reason to buy a smart car. With the addition of this bike lane comes confusing new rules of the road, which have the potential to cause traffic jams and bike-car-pedestrian collisions.

            Per Maryland law, these new bike lanes are classified as bicycle paths.[1] A bicycle path means any travel-way designed or designated by signing or marking for bicycle use, located within its own right-of-way or in a shared right-of-way, and physically separated from motor vehicle traffic by berm, shoulder, curb, and other similar devices.[2] In contrast, a bike lane means any portion of a roadway or shoulder designated for single directional bicycle flow.[3] Maryland law requires bicyclists to use a bike lane if a safe one is available on the same street; however the law is silent as to bicycle paths.[4] Therefore, bicyclists are not even technically required to use the new bicycle paths.

            While the bicycle paths are meant to be a safe solution for bicyclists and drivers to share the road, some bicyclists have voiced concerns about the bicycle paths not being wide enough to pass slow bicyclists.[5] Therefore, while they can legally move to the roadway to pass, it creates even more confusion on a road. A driver needs to keep an eye on pedestrians, traffic lights, construction, and now bicycle paths and rouge bicyclists passing. Are bicycle paths a good idea? Probably. However, the law either needs to be more clear or stricter about the enforcement and application of bicycle laws in Maryland to prevent major headaches for drivers, pedestrians, and bicyclists alike.


Elizabeth Hays is a third-year day student at the University of Baltimorunnamed-3e. She serves as a Staff Editor of the UB Law Forum and is Co-president of University of Baltimore Students for Public Interest (UBSPI). Her legal interests include, administrative and military law.  She can be reached at elizabeth.hays@ubalt.edu

What is Money?

By: Colin Campbell

To most of us, the definition of money seems rather simple and straightforward. However, that was not the situation for the Court of Appeals of Maryland, which was called upon to determine whether bank account assets are money or personal property under Maryland’s Forfeiture Statute.[1]

In Bottini v. Department of Finance, Montgomery County, Montgomery County Police arrested Gianpaolo Bottini for CDS possession with the intent to distribute.[2]  While on bail, Bottini emptied his two bank accounts, totaling $64,388.33, and placed the sum of the assets into his sister’s account.[3]  His sister then opened a new bank account in her own name and deposited the entirety of the assets into this new account.[4]  Upon conviction of Bottini, the Department of Finance of Montgomery County sought forfeiture of the assets in the account, claiming it was money resulting from Bottini’s illegal drug distribution.[5]  Bottini’s sister objected, asserting that the assets were intangible personal property, not money, thus the county request was untimely.[6]  Under Maryland’s Forfeiture Statute, CP § 12-102, requests for intangible personal property must be filed within 90-days of seizure.[7]  Since the county did not file its complaint for forfeiture within 90-days, the request would have been untimely and should have been dismissed.[8]

The Montgomery County Circuit Court Judge began by stating his personal understanding of what constitutes money.[9]  According to the circuit court, the legislature intended money to be more than just fungible cash but also assets kept in a bank account.[10]  The circuit court further stated that while the legislature has not defined money, the court does not believe it is necessary to do so.[11]  Furthermore, the circuit court found that since the assets were transferred to Bottini’s sister to pay for his attorney’s fees, and not as a gift or loan, that the funds were Bottini’s and subject to forfeiture.[12]  The circuit court held in favor of the county and issued an order for the $63,891.83 to be forfeited, finding that the assets were the proceeds of illegal drug transactions subject to forfeiture.[13]

Defendants appealed the circuit court decision and in an unreported opinion the court of special appeals upheld the circuit court’s holding.[14]  However, one judge dissented, finding that the bank account assets were “a contractual interest, claim, or right—i.e., intangible personal property—and that, as such, the complaint for forfeiture was untimely filed.”[15]  The defendants filed a petition for writ of certiorari, which was granted.[16]

Defendants argue that since bank account assets do not have a physical location and are only available by demand out of the bank’s assets, they are not money as intended by the forfeiture statute.[17]  They argued that the forfeiture statute intends money to mean physical currency such as bills and coins.[18]  The county argues that the forfeiture statute refers to physical money and wealth generally.[19]  Furthermore, a bank account reflects the physical money available to the account holder and thus is money under the statute.[20]

The court of appeals began by looking at the Merriam-Webster and Black’s Law Dictionary definitions of money.[21]  Both sources defined money as physical cash and assets or wealth that can be converted to cash, such as the assets contained in a bank account.[22]  The court further noted that the physical assets portion of the forfeiture statute did not have a heading for bank accounts.[23]  Thus, the court of appeals found in favor of the county and affirmed the definition that bank accounts are money under the statute.[24]  First, the court noted that this holding is consistent with the commonly held understanding of what constitutes money, and then referenced past holdings in which it had used the term “money” when referring to bank account assets.[25]  Next, the court referenced that the legislative history of the forfeiture statute supported this definition since the intent of the statute was to encompass all funds resulting from illegal drug manufacture and distribution.[26]  The court ultimately upheld the trial court’s finding that the county’s request for forfeiture was timely, and as such the account assets should be forfeited to the county.[27]

The dissent argued that the county was not seeking forfeiture of the defendant’s money but rather their bank account, which housed their money.[28]  As such the property at issue was a contractual interest, or intangible personal property, subject to a filing limitation of 90-days after seizure or 1 year from the disposition of the criminal charges.[29]  Since the bank account had been seized by the county in April of 2012 and petitioned for in August of 2013, the county petition was untimely.[30]

This case establishes a bright line rule that bank account assets are money under the forfeiture statute subject to the 90-day post-criminal conviction filing date.  A rule making the financial gains resulting from drug distribution easier to be forfeited to the state.  However, the legislature should still take steps to define money in the forfeiture statute to avoid future possible issues if a similar action were to concern the assets of an investment account.


15658752_10153979825990124_1989165244_oColin Campbell is a third-year day student at the University of Baltimore.  He serves as a Staff Editor for the UB Law Forum.  His legal interests include criminal prosecution and government contracts. He can be reached at Colin.Campbell@ubalt.edu.  You can also view his LinkedIn here.

In Conover Case, Court of Appeals Reinstates De Facto Parental Status in Maryland

By: Denise Blake

In July 2016, the Court of Appeals of Maryland decided Conover v. Conover, which held that Maryland courts should recognize de facto parent status for individuals who have assumed a parental role but lack a biological or adoptive relationship with their children.[1]  This holding provides legal standing for de facto parents to contest custody or visitation without being required to show parental unfitness of the biological or adoptive parent, or exceptional circumstances.[2]  This decision overruled the high court’s 2008 decision in Janice M. v. Margaret K., which abrogated de facto parent status as a legal status in Maryland.[3]

            Brittany and Michelle Conover were in a relationship for seven years when they decided to conceive a child via artificial insemination.[4] Brittany became pregnant and gave birth to a baby boy.[5]  Six months after their son Jaxon was born, Brittany and Michelle were legally married.[6]  However, after one year of marriage, they separated.[7]  In the months following the separation, Brittany allowed Michelle overnight and weekend visits with Jaxon.[8]  However, after almost a year of separation, Brittany abruptly terminated Michelle’s visitation with their son.[9] Almost eighteen months after separating, Brittany filed a divorce complaint in which she claimed that the parties had no children.[10]  Michelle filed an answer and a counter-complaint requesting visitation.[11]  Although Michelle was not biologically related to the child and had not legally adopted him, she had resided with her son during his early life, had a close relationship with him, and both parties had signed a handwritten joint custody agreement.[12]  The trial court ruled that Michelle was legally a third party and lacked standing to contest custody and visitation.[13]  The Court of Special Appeals affirmed.[14]

            Conover is significant for family law practitioners with LGBT clients because it reinstates the doctrine of de facto parental status that was established in S.F. v. M.D. in 2000 and abrogated by Janice M. v. Margaret K. in 2008.[15]  Janice M. was detrimental to LGBT parents seeking custody or visitation of a child to whom they were not related biologically or by adoption.[16]  In that case, the court held that de facto parents were third parties and had to overcome the rebuttable presumption that parental custody was in the child’s best interest by showing parental unfitness or exceptional circumstances.[17]  The court’s ruling in Conover acknowledges the important role of de facto parents in their children’s lives despite the lack of biological or legal parenthood, and recognizes that this type of strong parental relationship should not require a showing of parental unfitness or exceptional circumstances before determining whether custody or visitation with the de facto parent would be in the child’s best interests.



Denise A. Blake is a third-year day student at the University of Baltimolaw-forum-blog-photo-for-denise-blakere. She serves as a second-year Staff Editor of the UB Law Forum. Her legal interests include Family Law and Trusts and Estates. She earned a Master of Arts in Sociology from Tulane University. She can be reached at denise.blake@ubalt.edu. You can also visit her LinkedIn profile here.

 

Civil Liability for Adults Who Host

By Kayla DiNuccio

Previously, Maryland law did not recognize a cause of action for social host liability for adults or minors and only had criminal penalties imposing fines for furnishing alcohol to minors, or allowing minors to consume alcohol on their premises.[1]  Any person who violates Maryland’s drinking statute is “guilty of a misdemeanor and on conviction is subject to: (1) a fine not exceeding $2,500 for a first offense; or (2) a fine not exceeding $5,000 for a second or subsequent offense.”[2]  This meant even if an adult knowingly allowed minors to drink at their homes and one of those minors left and injured themselves or another, the adult could only face a small fine.[3]

Although there have been a number of cases that have raised the issue of whether social hosts should be civilly liable in Maryland, two cases have greatly impacted the law regarding social host civil liability.[4]  In Davis v. Stapf, an intoxicated minor got into the bed of a pickup truck driven by another intoxicated guest of the party and was killed on his way home.[5]  His mother, Nancy Davis, sought to hold the adult host, Ms. Staph, civilly liable because she was home, knew minors were drinking, and let them drive.[6]  Similarly, in Kiriakos v. Phillips, a minor, who was drinking at his friend Brandon Phillips’ house, an adult, left in the early hours and struck Manal Kiriakos while walking her dogs, causing life-threatening injuries.[7]  The Court of Special Appeals of Maryland denied relief to both parties, however, the Court of Appeals of Maryland granted their writs of certiorari.[8]

Decided together on July 5, 2016, Maryland’s highest court reversed and remanded both cases and held that adults who host underage parties can be civilly liable for injuries caused by or suffered by the intoxicated guest.[9]  The court held that because section 10-117 is founded on principles of public policy, adults who allow minors to drink on their property, who subsequently go on to injure themselves or others, may owe a civil duty to the persons injured.[10]  The court reasoned that underage drinkers cannot be solely responsible for their actions because they are unaware of the dangerous effects of drinking alcohol.[11]  This new form of limited social host liability adopted by Maryland is a huge step.  For years, courts have refused to recognize a cause of action for social host liability, reasoning that it was the minor’s intoxication that was the cause for any such injuries.[12]  Additionally, given its relatedness to dram shop laws, it will be interesting to see if Maryland changes those laws in the near future.


picKayla DiNuccio is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum. Her legal interests include Personal Injury Law, and Family Law. She can be reached at Kayla.DiNuccio@ubalt.edu or you could visit her LinkedIn.


Secret Police Surveillance over Baltimore City

By: Elizabeth Hays

For the past few months, the Baltimore Police Department, pressured to find a new way to reduce crime, conducted a secret aerial surveillance program over the city.[1]  The police recorded over 300 hours of surveillance, which covered approximately 32 square miles each flight.[2]  The Police commissioner and the mayor, Stephanie Rawlings-Blake, knew about the surveillance program from the beginning.[3]

           Maryland lawmakers and the American Civil Liberties Union (“ACLU”) are now considering legislation that would regulate police surveillance programs.[4]  The legislation would prevent the police department from acquiring new surveillance technology without public approval.[5]  Although the resolution on the cameras is too low to identify particular individuals, it can be used to track individuals and vehicles from crime scenes.[6]  The ACLU as well as other critics voiced concerns about possible Fourth Amendment violations.[7]  In fact, the footage from the plane was used to track down the suspects accused of killing two elderly siblings back in February.[8]   However, the police did not refer to the aerial surveillance in charging documents that were presented in court.[9]  Although this may be a benefit for law enforcement, citizens’ civil rights must be protected throughout this process.[10]  While the plane is not currently conducting surveillance, the police state that it might be used later during the Baltimore Running Festival in mid-October.[11] The future legislation regarding this matter could result in an impact on anything where the police have cameras that view the public, such as body cameras, CCTV cameras, or even dash cameras.[12]


unnamed-3Elizabeth Hays is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum and is Co-president of UBSPI. Her legal interests include, administrative and military law.  She can be reached at elizabeth.hays@ubalt.edu

What’s That Smell You Ask? That’s Just My Fourth Amendment Rights

 

By: Jared Lerner

A sniff is considered a search, according to the Court of Appeals of Maryland.[1]  Maryland’s highest appellate court ruled in favor of Terrance Jamal Grant (“Grant”) when it determined that the sniff search of his vehicle, by a police officer, following a routine traffic stop violated his Fourth Amendment rights.[2]

At the suppression hearing, the Circuit Court for Frederick County found the following: Deputy First Class Chad Atkins (“Deputy Atkins”) observed Grant speeding and pulled him over;[3] from the video of the traffic stop, Deputy Atkins’ head appeared to have breached the windowpane into Grant’s car;[4] and it was unclear from the video and Deputy Atkins’ testimony as to when he smelled the odor of marijuana.[5]  The trial court denied the suppression motion,[6] and Grant appealed to the Court of Special Appeals of Maryland,[7] which determined, under a totality of the circumstances standard, that the stop and search were reasonable.[8]

The standard of review of a circuit court’s denial of a motion to suppress is limited to the record of the suppression hearing, and facts are considered in the light most favorable of the prevailing party, the State.[9]  However, constitutional challenges to a search or seizure are reviewed de novo, and factual findings of the circuit court will not be disturbed unless they are clearly erroneous.[10]

The Court of Appeals determined the initial stop, due to Grant’s speeding, and detention to be constitutional,[11] but the case depended on when Deputy Atkins detected the odor of marijuana – before or after he breached the windowpane.[12]  The court provided a detailed Fourth Amendment analysis,[13] culminating with a finding that Grant’s vehicle was protected from illegal searches and seizures.[14]  Next, the court determined that Deputy Atkins conducted a search when he “inserted his head into the constitutionally-protected area of [Grant’s] vehicle” without a warrant or other justification.[15]  It explained that there were no exigent circumstances that made the warrantless search reasonable.[16]

The court determined that the exclusionary rule applied since it was unclear when Deputy Atkins observed the odor of marijuana.[17]  The State failed to meet its burden of proof by failing to show that Deputy Atkins discovered the odor of marijuana prior to breaching the windowpane.[18]  Thus, the Court of Appeals determined that the circuit court erred in denying Grant’s suppression motion.[19]

Maryland attorneys should take note of the circumstances surrounding the Grant case.  In suppression hearings for evidence obtained as a result of the detection of marijuana, it is important to identify the exact moment that the searching officer identified the odor in the car.  The State must meet its burden of proof with a showing that the searching officer detected the odor of marijuana before breaching the windowpane of the defendant’s car.  Without such a showing, the evidence obtained as a result of the search should be excluded.


unnamed-1Jared Lerner is a third-year law student at the University of Baltimore School of Law. He will graduate in May 2017 with a concentration in litigation and advocacy. He is currently working on a research paper that applies tort principles to company data breaches. Throughout law school, Jared gained practical experience in several practice areas, including trusts and estates, alternative dispute resolution, trial and appellate litigation, and administrative law. Most recently, he served as an honors law clerk at the U.S. Environmental Protection Agency in the Office of Enforcement and Compliance Assurance. Prior to law school, he attended the University of Central Florida where he earned a B.A. in May 2014. Jared can be reached at jared.lerner@ubalt.edu.