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

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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.

The Criminalization of Juveniles within the Confines of the Baltimore City Public School System

 

 By: Pascale Cadelien

            In 2008, although blacks and Hispanics comprise about 25% of the United States population, they accounted for 58% of all prisoners.[1] The disproportionate number of minorities who are imprisoned results from intersectionality, or the codependency of social identifiers, such as race, gender, and class, in the systemic perpetuation of discrimination.[2] In Baltimore, the problem of intersectionality made national headlines following Mayor Stephanie Rawlings-Blake’s request that the Department of Justice (“DOJ”) conduct an investigation into the city’s police force.[3] In its August 10, 2016 report, the DOJ described the Baltimore Police Department’s (“BPD”) pattern of performing unconstitutional searches, abusing individuals’ civil rights, and failing to hold cops accountable for their misconduct.[4]

Aside from underscoring that Baltimore has a long way to go in fixing its police-citizen interactions, the DOJ report also raised the troubling concern of how the BPD’s presence in Baltimore City public schools significantly perpetuates the school to prison pipeline.[5] According to the Maryland Department of Juvenile Services, in 2015, at least 3,390 juveniles were arrested in Baltimore, the majority of which were black.[6] Of those arrests, 427 occurred in school.[7] At 45%, this majority black school district, which comprises only 10% of the State’s primary education population, disproportionately accounts for Maryland’s school arrests.[8] Even more alarming, is that these juveniles who are being arrested are not “hardened criminals.”[9] Research of 400 school-based arrests in the 2013 and 2014 academic years established that 75% of kids arrested in city public schools either had their charges dismissed or were found not guilty.[10]

Examining the origin of the policing of Baltimore City public schools illustrates how this system has persisted. In 1967, the legislature’s creation of a school security division coincided with the newly-elected mayor, Thomas D’Alesandro III’s, school integration plan.[11] Around this time, the black-student population in city schools increased while the city maintained its pre-integration districts.[12]  In 1984, the school security division transitioned to an official police force as the crack epidemic made its way through Baltimore.[13] Finally, in the 1990s, the legislature enacted a bill that enabled city schools’ security to have the same functions as standard police officers.[14]

As this piece demonstrates, there are grave consequences when intersectionality fulfills its purpose of systemic discrimination. Communities become broken and children, the most vulnerable, get caught in the crosshairs.


Pascale Cadelien is a third-year day student from Prince George’s County interested in criminal defense. This spring, through the Criminal Practice Clinic, she is gaining litigation experience as student-attorney. Pascale is also a Staff Editor on UB’s Law Forum. Prior to joining UB, she attended Salisbury University on the eastern shore.  In 2013, she graduated cum laude with a B.A. in English and as a member of the English Honors Society.  Pascale can be reached at pascale.cadelien@ubalt.edu.

The Future of Daily Fantasy Sports Still Unclear in Maryland

By: Wayne Hicks

The popularity of daily fantasy sports websites is spreading rapidly throughout the state of Maryland, where more than 200,000 people are actively participating.[1]  Daily fantasy sports games allow participants to draft professional athletes on imaginary teams and compete against others often wagering money.[2]  Despite its popularity among users, Maryland legislators fear that the money wagering features could result in residents getting “in over their head and risking more than they can afford….”[3]

Two bills recently went before the Maryland House of Delegates regarding the legal status of daily fantasy sports competition in Maryland.[4]  Neither of the bills were passed by the state legislature.[5]  The first bill, Senate Bill 976, which was introduced on February 11, 2016, proposed that the state should regulate daily fantasy sports to a referendum.[6]  More specifically, the bill stated that daily fantasy participants would be required to register with a licensed operator, be at least 21 years old to play, and the operators of daily fantasy leagues would be required to conduct the games in a manner consistent with regulations set forth by the State Lottery and Gaming Control Commission.[7]  The second bill, Senate Bill 980, which was introduced on February 12, 2016, proposed an outright ban on daily fantasy leagues if the voters chose not to approve the referendum.[8]

These two recently proposed bills were introduced to the Senate following an advisory opinion that was issued by Attorney General Brian Frosh.[9]  The advisory opinion described daily fantasy leagues as an expansion of commercial gaming in Maryland, and therefore daily fantasy operators should be subject to voter referendum.[10]  In this opinion, Attorney General Frosh was referencing the law passed in 2012, House Bill 750, which states that fantasy competitions are exempt from Maryland gaming prohibitions.[11]  Therefore, the two bills introduced to the senate appear to have been measures taken by legislators who supported Attorney General Frosh’s opinion that the 2012 law provided too much leeway for fantasy gaming in Maryland.[12]

Although it appears that daily fantasy sports operators have won, it still remains highly likely that the 2012 law will be revisited given the opposition it has received for providing a blanket exemption for fantasy league operators.  However, the inevitable attempts to amend the law will be met with opposition from supporters of daily fantasy sports, who embraced Maryland’s decision to pass the 2012 law.  Supporters and various organizations have provided statements suggesting that, at the very least, the Maryland Senate should educate themselves on the growing trend and strive for regulations that support the business rather than closing it off entirely.[13]


whphotoWayne Hicks 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 general civil practice and criminal defense. He can be reached at Wayne.Hicks@ubalt.edu. You can view his LinkedIn here.


Throwback Thursday: Citizen Journalists & the Right to Gather News.

In 2014, Law Forum published Citizen Journalists & the Right to Gather News: Why Maryland Needs to Acknowledge a First Amendment Right to Record the Police by Kristine L. Dietz (J.D., 2014).

More than half of cell phone users in the United States own a smartphone. The video recording capabilities of smartphones make it possible for users to record anything, almost anywhere, at anytime. This modem technology allows for the immediate transfer and widespread dissemination of footage. Recently, videos of alleged police misconduct have gone viral on the Internet and the police are not happy about it. This increase in citizen journalism has left police officers defensive about their privacy and their ability to do their job without interference.

Throwback Thursday: Commemorative Histories of the Bench and Bar

In Spring 1997, the University of Baltimore Law Forum published an article entitled: Commemorative Histories of the bench and Bar: In Celebration of the Bicentennial of Baltimore City, by the Honorable John Caroll Byrnes (now retired).

In commemoration of the City’s bicentennial, the University Of Baltimore School Of Law and the Law Forum are pleased to offer these excerpts from Commemorative Histories of the Bench and Bar in Celebration of the Bicentennial of Baltimore City, 1797-1997, as a tribute to all of those who helped forge our City’s rich legal heritage. Commemorative Histories should also serve as a reminder to those who are presently involved in the practice, purveyance, or study of the law that their endeavors may one day be recorded by future generations of Baltimore citizens as they reflect upon the accomplishments of their predecessors.

Download and read the article here.

Throwback Thursday: Welfare, Privacy, and Feminism

In March of 2008, the University of Baltimore Law Forum, published this article, entitled: Welfare, Privacy, and Feminism by Professor Michele Estrin Gilman.

Feminism has long been concerned with privacy. Second-wave feminists assailed the divide between the public and the private spheres that trapped women in the home, excluded them from the workforce, and subjected them to domestic abuse. Second-wave feminists also argued in favor of a sphere of privacy that would allow women to make reproductive choices without state interference. These were powerful critiques of existing power structures, but they tended to overlook the experiences of poor women. 

A Court May Reopen a Closed Post Conviction Proceeding to Address a Challenge to an Advisory Only Jury Instruction

By: Ashley N. Nelson-Raut, Associate Editor 

The Court of Appeals of Maryland held that advisory only jury instructions are not harmless error and the Unger v. State precedent should be applied retroactively. State v. Waine, 444 Md. 692, 122 A.3d 294 (2015). In addition, the court held that a defendant’s motion to reopen his or her post-conviction case after the Unger decision met the “interests of justice” standard required for reconsideration of the constitutionality of the defendant’s conviction. Id. at 695, 122 A.3d at 294.

A Confession is Voluntary Unless the Defendant Unambiguously Invokes His Constitutional Right to Remain Silent or the Confession is Obtained Through Coercion or Inducement.

By: Pascale Cadelien, Staff Editor

The Court of Appeals of Maryland held that “I don’t want to say nothing. I don’t know,” is an ambiguous invocation of the right to remain silent. Williams v. State, 445 Md. 452, 455, 128 A.3d 30, 32 (2015). The court reasoned that the defendant’s addition of “I don’t know” to his initial assertion “I don’t want to say nothing” created uncertainty about whether he intended to invoke his right to remain silent. Id. at 477, A.3d at 44. This allowed a reasonable officer to interpret his statement as an “ambiguous request to remain silent.” Id. Furthermore, the officers’ implication that the defendant should confess to a “robbery gone bad,” instead of premeditated murder, did not induce his confession. Id. at 477-483, A.3d at 45-48. Accordingly, the defendant’s confession was voluntary. Id. at 483, A.3d at 48.

The Sweeney Legacy: A Tribute to the District Court of Maryland’s First Chief Judge

By: Chief Judge John P. Morrissey, District Court of Maryland and Lauren Kitzmiller.

Many changes have been made during my first eighteen months as the Chief Judge of the District Court of Maryland. For example, we have added a brand new program to provide all indigent defendants with representation at initial appearances before Commissioners. We have also converted the judiciary from paper filing to an electronic filing and case management system and moved the location of the district court headquarters.

All of these endeavors have been challenging, but something special came when packing up the old office and moving next door. In the accumulation of folders, documents, and other miscellaneous office supplies, I found two ordinary file folders hidden amongst the many records accumulated by the district court over the years. These files, however, were anything but ordinary. What I found was not only history of the district court, but also history of its first Chief Judge – the man who sat in my position, over forty years ago. Looking through these folders that contained speeches, convocations, and publications, I not only received first-person insight to the beginnings of a new court, but of the man behind it all – the Honorable Robert F. Sweeney.