JASON NATHANIEL CARTER v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Fader, April 2, 2018,
Volume Dealer – Despite being called the “volume dealer” statute, it is not necessary to prove intent to distribute CDS as long as the person possesses the required quantity of CDS.
The 4th Amendment analysis here is… not great.
1) Alternative investigations may be pursued during a car stop, but only where they’re supported by RAS (or de minimis). Fader suggests that an unsupported investigation can be performed because it’s at the same time as a valid stop… which… yeah… no.
2) A search that happens to occur before an arrest (but the search is not related to the arrest except by its temporal precedence) is not the same as a search incident to arrest. Only one of these is an actual SSW exception. MD Courts have been stretching this further and further of late, and I wonder if that might not snap at some point. A search where arrest is a foregone conclusion? No problem. But a search where nobody mentioned anything about arrest and we’re just fishing for evidence is… ummm… iffy.
Facts:
In 2014, Montgomery County patrol observed a vehicle fail to make a complete stop at a stop sign in an area known for high drug activity. The officer followed and paced the vehicle at 48 mph in a 40-mph zone.
Carter was the only occupant of the vehicle. The officer pulled Carter over at 0052 hours and Carter appeared “extremely nervous.”
The officer obtained Carter’s license and registration and returned to his vehicle at 0057 hours. The officer requested a K-9 unit for a drug scan and ran a record and warrant check on Carter and the vehicle. The officer was still writing citations when K-9 arrived on scene at 0107 hours (15 minutes after the car stop began).
Carter was ordered out of his vehicle for the k-9 scan. After a positive scan, the car was searched with negative results. A “pat-down” of Carter revealed “an unnatural bulge in the area of Mr. Carter’s groin.” At this point, Carter began to struggle and it took four officers to detain him.
Recovered from Carter were two plastic baggies with more than 70 grams of crack cocaine.
At trial, Carter requested that the jury be instructed that CR 5-612 (“Volume Dealer”) requires a finding that Carter intended to distribute the cocaine. The judge denied this, as the statute does not include any requirement of intent to distribute.
Carter was convicted and appealed, arguing that because CR 5-612 is labeled “Volume Dealer,” it must require an intent to distribute. Carter also challenged his search as illegal.
Held: The Court of Special Appeals held that the label a publisher places on a crime is irrelevant and that the stop and search of Carter were legal.
“Volume Dealer” – Maryland CR 5-612 is labeled “Volume Dealer” by the publishers of the Maryland Code of Law, but the statute itself only says that “a person may not manufacture, distribute, dispense, or possess…” specified quantities of CDS.
From the Case: The title or label given to a law by a publisher has “no role whatsoever in our interpretation and application of Maryland law.”
Pretext Stops – A pretext stop is legal as long as an officer has at least reasonable suspicion that a crime was committed (even a crime other than the one the officer wants to investigate).
From the Case: “An otherwise-valid traffic stop does not become unconstitutional just because the actual purpose of the law enforcement officer making the stop was to investigate potential drug crimes.”
Pretext Stops – Duration – A pretext stop can only last as long as it takes to investigate the pretext (and issue tickets/warnings as needed)
Pretext Stops – Actions Taken – A pretextual stop is valid for the time it takes to run record checks on the vehicle and driver. It also includes the time it takes to write whichever tickets or warnings need to be written.
From the Case: Because the judge found the patrol officer’s testimony credible “that it takes him eight-to-ten minutes to conduct all of the necessary records checks and five-to-seven minutes to write the citations at issue, it was not unreasonable that he was still writing the traffic citations” when K-9 arrived.
Pretext Stops – Briefing Officers – If other officers arrive on scene, it is reasonable to brief them regarding the situation so long as this remains “brief.”
Seizures – Canine Scan – A car stop cannot be prolonged in order to wait for a k-9 scan unless there is already reasonable suspicion of a crime related to that scan. However, if the car stop is still going on there is no issue having a k-9 unit conduct a scan.
From the Case: “The original traffic stop had not ended, nor had it been extended improperly, at the time” the drug dog alerted “because it occurred within the time that tasks tied to the traffic infraction are—or reasonably should have been—completed.”
Canine Alert – Probable Cause – A canine alert for CDS gives probable cause to search a vehicle AND probable cause to arrest the driver of the vehicle.
Search Incident to Arrest – Warrantless searches of a person can generally only be done incident to arrest.
Search Incident to Arrest – The fact that a search happens just before an arrest does not make it illegal as long as it is “essentially contemporaneous” (during the same time period). However, the officer must have probable cause to arrest BEFORE the search.
Practice Note: By searching before the suspect is under arrest, however, you may be jeopardizing the search if the trial judge believes that it was not “contemporaneous” enough. Better practice is to inform the suspect that he is under arrest, conducting your search, and then deciding what to do with the suspect after your search is complete. Nothing stops you from letting a suspect go if your investigation does not uncover more evidence.
Practice Note: A “pat down” is done as a search for weapons. A pat-down may be performed prior to a full search incident to arrest as a safety measure, but do not confuse the two. A pat-down is looking for weapons. A search incident to arrest is looking for weapons, evidence, and contraband.