Baltimore Criminal Defense Lawyer Blog
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cellular-tower-28883_640 A secret cell phone tracking system used by law enforcement for over a decade is slowly being exposed, but defendants and their attorneys are still being left in the dark in thousands of criminal cases each year. The technology commonly referred to as stingray consists of an array of sophisticated electronics, which fit inside a box about as big as a suitcase. The cost is steep, with each unit running over $400,000, and the right to use it comes with the catch of signing a non-disclosure agreement with the FBI and receiving training with the Secret Service on cellular theory. The general premise of the device is to simulate a cell phone tower to lock into a specific phone, which can ultimately lead the operator and his or her team to within a few yards of the target. The exact range of the device is unclear, but law enforcement apparently must first secure a general location from the cell phone company before deploying the stingray. Baltimore City’s so called Advanced Tactical Team has used this system over 4,000 times since 2007, resulting in thousands of arrests and hundreds of convictions. But the success of this surveillance technology comes at a high price.

 

While stingray system does not have the capability to intercept cell phone content such as text messages or pictures, it does capture information from almost every cellphone in its range. This typically includes phones of dozens of innocent bystanders who as a collateral consequence are electronically tracked by police.  The unintended location tracking of innocent phone users by law enforcement is disconcerting, but it’s hardly a cause for outrage. The real concern is that use of the stingray system has created a climate of blatant disregard for the Constitution, and the Maryland electronic surveillance laws to boot.

 

In Baltimore the thousands of stingray aided arrests were most likely effectuated in violation of state electronic surveillance laws. City police officers rarely considered applying for search warrants to use stingray, and most of the time would not even notify prosecutors when they used the hi tech system to locate the suspects they arrested. Police would deliberately fabricate their reports as if using the stingray system never happened, stripping defendants and their attorneys of the opportunity to challenge the legality of the surveillance. In cases where prosecutors and defendants asked too many questions, such as when cops magically appeared in the exact right place to solve a crime with no explanation on how they got there, the police officers would button up and site their non-disclosure agreement with the feds. Most of these cases where the police work was seemingly too good to be true ended up being dismissed, and in total about one third of the over four thousand stingray arrests in Baltimore suffered this same fate. These numbers included serious felony arrests such as kidnapping, robbery and murder, which according to the FBI are solved each day using the stingray. But the technology is often used in less serious cases such as theft, drug distribution and destruction of property, where it is much tougher to justify ignoring privacy laws. Regardless of the eventual outcome of the stingray cases, damage is done as soon as an illegal arrest is carried out. You cannot simply unarrest a defendant whose rights have been violated.

 

The Blog will continue to follow further leaks and developments on the stingray technology, and may post a follow up article in the future. It is possible down the road that warrantless use of the system could be restricted violent felonies where lives are at stake, but barring legislative action it seems as if the technology is here to stay and will be used to solve all types of criminal cases.  Benjamin Herbst is as Maryland criminal defense attorney who handles all types of charges ranging from robbery and murder, to drug distribution and theft.  Contact Benjamin anytime for a free consultation about your case at 410-207-2598.

Resources

Police secretly track cellphones to solve routine crimes, usatoday.com.

 

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medpotEach step toward a viable medical marijuana program brings with it numerous unforeseen obstacles, and it’s been that way in Maryland since 2013. Two years ago lawmakers in Annapolis passed the state’s first medical marijuana program only to see zero institutions take them up on the offer. The legislature thought it was being progressive back in 2013, but the strict program regulations proved otherwise. The following year the General Assembly went back to square one with their sights now set on developing a program that was actually feasible. The regulations were again modified this past year, but once again it was way too early to celebrate. Lawmakers reached an agreement on the number of grower and distributors licenses, but there was still much to be determined about how the application and selection process would evolve. As it stands now the regulations are still not finalized, and probably wont be until next month. No applications are currently being accepted, and all told we’re now looking at late 2016 for the state’s first functioning marijuana dispensaries to open shop. Even this timeframe may still be slightly optimistic, as local politicians may now attempt to restrict the location of the 94 licensed dispensaries.

 

Generally speaking, our state laws are drafted and voted upon by either senators or representatives, and then approved by the General Assembly and the Governor. Local governments also are free to enact their own laws, provided they don’t interfere with state or federal laws, but local ordinances are less visible as a means to govern the public in Maryland. In the criminal law field local ordinances are few and far between as the state criminal code is thorough. The few local ordinances with criminal consequences we see are typically open container laws (such as in Ocean City), litter laws, and noise violations. In most jurisdictions the most important duty of local politicians is to enact zoning regulations. This is not to say their job isn’t important, as zoning decisions often have millions of dollars at stake.

 

Local politicians have the ability to become involved in the medical marijuana process if they decide to exercise their zoning authority to restrict the location of growers and dispensaries. In theory a county council member could enact zoning regulations that would completely ban medical marijuana, thus effectively making the state program non-existent in a particular area. This is exactly what may be happening in Baltimore County, as a member of the county council has indicated a desire to introduce restrictive zoning requirements for medical marijuana dispensaries. These restrictions include being 1,000 feet from schools, day care centers, parks, places of worship, and libraries. The proposal would also keep dispensaries in the county at least 2,500 feet away from each other. State politicians, such as senator Zirkin, have taken exception to this type of local proposal, stating it would in essence thwart the state legislature’s attempt to make medical marijuana available to patients in need. Zirkin explained that dispensary zoning regulations should be no more restrictive than those placed on pharmacies, which dispense far more addictive and powerful drugs than pot. The Baltimore County Executive agrees, stating that there is no need for new medical marijuana local zoning laws.

 

The Blog will continue to follow this issue, and others surrounding the progress of the state’s medical marijuana program, and we’ll likely post a follow up article in the next few weeks with an update. Benjamin Herbst is a Maryland criminal defense lawyer who handles cases in all state and federal jurisdictions. Contact Benjamin today for a free consultation about your case.

Resources

County officials seek answers on medical marijuana, baltimoresun.com.

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1010760_dna_1DNA collection and preservation by law enforcement has been one of the more hotly contested privacy issues of the last decade. The presence of a defendant’s DNA at a crime scene is often the most compelling state’s evidence at trial, while the lack of DNA at the scene can be equally as strong for the defense. Maryland law gives police the right to take a suspect’s DNA sample in certain arrests, and this procedure is usually done with a minimally evasive cheek swab. No warrant is required to take the swab pursuant to a federal court decision from two years, which established that DNA triggers similar privacy rights to a booking photo or a fingerprint. Additionally submitting to a DNA sample is not testimony, and therefore a defendant does not have the right to consult with an attorney prior to opening up for the swab. There’s no denying the power of DNA evidence in open law enforcement investigations, as both the defense and prosecution have hung their hat on it thousands of times. But controversy arises when DNA collected for an entirely different reason is used to solve a cold case, or a criminal case with no leads. Recently, The Maryland Court of Appeals handed down a decision that may once again spark the nationwide DNA debate.

 

Three years ago an Anne Arundel County man voluntarily submitted to a law enforcement DNA swab after he was suspected of being involved in a rape. The sample didn’t match and the man was cleared of any wrongdoing in the rape, but just one year later he was indicted on a burglary charge that had actually occurred five years prior. Police had kept his voluntarily submitted sample and plugged it into a database for the cold case burglary. When the sample matched the man felt he had no defense, and pled guilty to a four year suspended sentence. The defense appealed stating that keeping and using the man’s DNA for another purpose than the rape case amounted to an illegal search and seizure that violated the Fourth Amendment. The Maryland high court judges disagreed, and ruled that once police lawfully obtain a person’s DNA they are free to keep it and use it for any law enforcement purpose. Once they have it, they get to keep it.

 

The decision by the Court of Appeals is hardly groundbreaking. Police have been holding on to fingerprints for decades. But that’s not even the most compelling argument for the government. The protections of the Fourth Amendment prevent law enforcement from illegally infringing on our right to live as private citizens. When cops overstep their boundaries to obtain evidence then it is a judge’s duty to suppress everything that flows from the illegal intrusion. But when law enforcement conducts a legal search or seizure any other unexpected pieces of evidence they recover are fair game. If cops execute a search warrant looking for drugs and instead find illegal firearms and stolen property, then the defendant will be charged accordingly. All the evidence will be admissible. It’s the same principal with DNA collection; if law enforcement lawfully takes a sample for one investigation, they are free to use it if it matches on another investigation. This decision is not one that will please defense attorneys, but it’s hardly the most surprising one to come out of Annapolis.

 

The Blog will continue to monitor the DNA collection and retention issue around the country, and may post a follow up article in the future. Benjamin Herbst is a criminal defense lawyer who handles burglary and theft cases in all Maryland jurisdictions. Contact Benjamin for free consultation about your case at 410-207-2598.

Resources

Court ruling allows DNA to be used in future cases, baltimoresun.com

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lock-218505_640No jail or prison facility in the country should have a reputation. They should rarely appear in the news or be the topic of discussion. Rather, they should be like the best referees in football or the top umpires in baseball, who are seen but seldom heard from or remembered. The Baltimore City Detention Center it just the opposite, and has a terrible reputation as a dangerous and dirty facility that dates back almost 100 years. The facility survived calls for its closure in the 1930’s due to being outdated and unfit for living. There were riots at the jail in the 70’s, overcrowding which led to an unprecedented state takeover in the 90’s, and massive corruption over the last decade that led to 40 federal convictions of guards and inmates for drug distribution and racketeering from within the facility. And throughout these troubled times there were hundreds of complaints and lawsuits from inmates and the ACLU describing uninhabitable conditions. Yet the facility continued to remain open for business, and accepted defendants awaiting trial or sentenced to less than 18 months right up until last week when Governor Hogan decided to put an end to the disgrace that was the BCDC.

 

In a surprising and dramatic move, Hogan recently announced to reporters from a podium along Eager Street that he was closing the city jail immediately. The governor explained he would no longer allow the shamed facility to be a “black eye” upon the state, and scorned his predecessor for doing nothing to fix the longstanding problem. Some one thousand inmates will be moved to other jail facilities, which the governor described has having more than enough space. Defendants awaiting trial will likely stay at facilities within the city limits, while those already sentenced could be moved to nearby counties. Corrections officers and staff will be reassigned to other posts. Hogan definitively stated that the jail will not be rebuilt or refurbished, but will be torn down with no specific plan for the future of the site. The closure will save Maryland taxpayers roughly 10 to 15 million dollars per year, and effectively axe a half billion-dollar proposal from 2013 to rebuild a new jail at the same downtown location. More importantly it will put an end to an embarrassing run of corruption and maltreatment that became the standard at the jail.  As of today most of the inmates still remain at the BCDC, but as many as 50 have bee transferred out and all should be moved within the next couple of weeks.

 

The closure is welcome news for friends and family of the inmates, and for their defense attorneys who were constantly reminded of the horrendous living conditions. While the inmates clearly suffered the most, even visiting the jail was a frustrating and uncomfortable process. Governor Hogan knew this, and rather than meet, discuss, and stall with lawmakers he took immediate action and did what needed to be done. Some lawmakers expressed displeasure with Hogan’s failure to consider a ten-year plan to revamp the facility that was recommended by a legislative commission. Not surprisingly it was the democratic lawmakers who voiced the public displeasure. These detractors politicized something that has absolutely nothing to do with politics, and their issue was likely the fact a leader from a different party overruled them. The city detention center was an absolute disgrace on all levels, and shuttering its doors for good was action that should have been taken years ago.

 

Benjamin Herbst is a criminal defense attorney who handles cases ranging from DUI to armed robbery.  He represents clients in all Maryland state and federal jurisdictions, and is available 7 days a week for a free consultation.

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police-780322_640During the off-season Ocean City is a quiet beach town with a population of around ten thousand residents, and relatively low police activity. In the summer months though the town transforms into a bustling city of over 300,000. Most of the summer visitors come with family to enjoy Maryland’s famous 10-mile stretch of beach, but there’s also the crowd that comes with a different purpose. The nightlife along coastal highway is enough motivation for many to brave the Route 50 speed traps, or the stop and go traffic coming from Pennsylvania down through Delaware. As is usually the case, packed bars and party hungry tourists attract the attention of police officers. Some officers are simply out there to keep the peace, but others are hungry for some police action. The 100 plus “seasonal” officers that the town of Ocean City employs each summer to supplement the regular force would probably fall into the latter category. Thousands of partygoers plus an increased law enforcement presence makes it hardly a surprise that the OC Police recently conducted a major undercover drug operation.

 

The undercover drug operation lasted throughout June and yielded 37 arrests. There were 23 controlled drug transactions between cops and unsuspecting dealers, which were used as evidence for distribution charges and other CDS offenses. Police also seized physical evidence including marijuana, cocaine, firearms and cash. Almost all of the defendants are from Maryland, though a few are Pennsylvania residents, and 6 of the 37 were arrested and charged as juveniles. The adult defendants range in age from 18 all the way to 46, but most are 23 or younger. All but three of the adults are facing felony charges that will likely be set for preliminary hearings in the Ocean City District Court sometime in August. Most of these cases will then be indicted or filed in the Worcester County Circuit Court over the next few weeks. Two of the cases are misdemeanor weapons charges and one is a disorderly conduct, which could be handled in the district court right in town.

 

This is definitely not the first, and will not be the last time Ocean City Police put together an organized undercover drug operation. Each summer there are dozens of drug arrests that involve an undercover cop posing as a party going tourist looking to get high. Most of these controlled deals involve a team of around four officers. One or two are usually dressed in street clothes, while another couple are watching or recording from a police car. The cops posing as potential buyers will typically meet their suspects in crowded areas such as the boardwalk, and then lure them onto the side streets to complete the deal. After the transaction is finished the uniformed officers will then jump out to make the arrest. In some instances police will not make an arrest right away, but will wait until the entire operation is over so as not to jeopardize the identity of the undercovers. But these situations are usually reserved for known dealers, and require a more patient approach that might not be practical to law enforcement in a tourist town. The Blog will follow these cases as they progress through the county courts, and may post a follow up article if necessary.

 

Benjamin Herbst is a drug distribution lawyer who handles all criminal charges in Maryland, including wearing or carrying a handgun and disorderly conduct. Contact Benjamin anytime for a free consultation about your case at 410-207-2598.

 

Resources

 

OCPD arrest 37 in buy-bust drug operation, wmdt.com.

 

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seal-42280_640The U.S. Attorney’s Office recently announced the indictments of more than a dozen defendants involved in a large-scale theft ring in Prince George’s County, Montgomery County, the Washington D.C. metro area. This particular criminal organization has apparently been in operation since 2009, and is allegedly responsible for the theft of over $5 million worth of cars, cash, jewelry, and electronics. The FBI has reportedly linked over 100 auto thefts to the group, as well as the looting of multiple ATMs. The group also stole personal identification information such as credit card numbers, and would sell or fraudulently use the information. Seven of the defendants were arrested during search warrants carried out by state, local, and federal law enforcement officers. In total 140 cops were involved in executing the eleven search warrants in the racketeering conspiracy. Two of the defendants were already in custody on other charges, while five remain at large, with $5,000 rewards being offered for information leading to their arrest.

 

The indictments were recently unsealed, and now details of the crime ring’s inner workings has been revealed to the public. Among the groups tactics were stealing cars while they were unlocked at gas stations, outside of homes, and even at cemeteries. Group members would then use the stolen vehicles to commit other crimes such as robbery and burglary. In fact a recent robbery of a couple at a cemetery has been linked to members of the group. Information obtained in the investigation, headed up by the Baltimore office of the FBI, revealed that the group would regularly meet to discuss new ideas to carry out thefts and other crimes. As is typical of these investigations, law enforcement officers recovered numerous incriminating text messages and social media posts between group members. In some conversations defendants discuss the sale of stolen cars and guns, with at least one conversation including a picture of stolen firearms. These conversations are all fair game for use at trial, and will likely allow federal prosecutors to make easy work of many of the cases.

 

Each indicted member of the theft ring faces multiple felony counts in federal court, and most of the counts are punishable by up to 20 years in prison. The cases will be prosecuted at the United States District Court in Greenbelt, and while there are no trial dates as of yet, it’s likely that many of the members will enter into plea agreements with the government over the next few months. As is usually the case in multi defendant conspiracy prosecutions, the first handful to plea will likely receive the best offers. The defendants range in age from as young as 22 to as old as 54, so they will likely have varying degrees of criminal records. Defendants with numerous prior convictions will undoubtedly face the harshest sentences, and may find it difficult to obtain a reasonable plea deal. The younger defendants may be enticed into taking a deal with the caveat that they would have to testify against other members if the cases were to go to trial. What started out as a close-knit ring could easily turn into a situation where every man is just looking out for himself. The Blog will follow the progress of these cases, and we may post a follow up article of some interesting news comes out of the courthouse.

 

Benjamin Herbst is a Maryland theft attorney who also handles robbery, burglary, and various gun crimes. Contact Benjamin to speak about your case at anytime.

Resources

$5M ‘Simple City’ Theft Ring Shut Down in Md., Police Say, nbcwashington.com.

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police-224426_640Not that they deserve one, but the Baltimore Police               Department cannot catch a break. After months of negative publicity surrounding the death of Freddie Gray, dozens of new accusations of police brutality, spiking crime rates, and allegations of lack of leadership that led to the firing of their top cop, the department is back in the news. This time the news is for an incident that happened five years ago, but these days any tidbit of information about cops in Maryland’s largest city will make headlines. Back 2010 a federal department of defense employee was arrested for violating the city’s loitering law, when he allegedly refused to enter a Baltimore Street business or keep walking. Although prosecutors eventually dropped the charges, and the criminal case has since been expunged, the man spent 12 hours in jail and missed work the next day. He hired an attorney after the incident, and a lawsuit against the city was ultimately filed. After both parties failed to reach a settlement agreement the case proceeded to jury trial in the circuit court for claims of battery, false imprisonment, and false arrest.

 

At trial the man testified that he was not violating the loitering law, and to the contrary he was arrested for simply talking back to the police officer. The man also testified that although the criminal charge has been expunged, record of his arrest still exists in his FBI criminal background database. This has apparently prevented him from moving up the ladder and earing higher wages while working at the Pentagon. While Maryland has a user friendly expungement process, the FBI, who keeps records of all arrests and criminal charges, is under no obligation to follow a state order to expunge a record. This is a common problem, and a tough pill to swallow for any person who is wrongfully arrested or prosecuted. At the close of the case the jury awarded damages in the amount of $272,790 in favor of the plaintiff. The city appealed, but then agreed to settle for an even $200,000.

 

The verdict and eventual settlement may seem high considering that the man was not injured, and the criminal case was expunged before it went to court. But the arresting officer who was the target of the civil suit was the opposite of a defendant warranting sympathy. In 2011 the officer was convicted for his role in a city towing scandal where officers were illegally paid by a body shop to refer customers, and falsified accident reports to increase damage claims. The officer served 8 months in federal prison and was fired from the police department. He was also the subject of two other large civil settlements against the Baltimore police; in one case he was accused of breaking a woman’s wrist after pulling her from a car, and in the other case he was accused of beating a handcuffed man. After the city recently settled his third civil case, the cop went on record as stating the settlement was “unbelievable” because the plaintiff had no injuries. These comments prove the shamed ex-cop still doesn’t get it, as you simply cannot put a price on wrongfully arresting, jailing, and prosecuting an innocent person. The officer apparenlty wants his job back, which actually is unbelievable. All the city needs right now is to reinstate an ex-cop convicted of fraud and corruption in federal court, and three times accused of beating, injuring, and wrongfully arresting the citizens he was sworn to protect. Unbelievable indeed, although delusional might be more accurate.

 

Benjamin Herbst is a criminal defense and personal injury attorney who handles cases in all Maryland jurisdictions. Contact Benjamin at anytime for a free consultation about your case at 410-207-2598.

Resources

Man who sued Baltimore officer for false arrest settles for $200,000, baltimoresun.com.

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apple-256261_640.jpgThe shamed Baltimore City public school teacher charged with eleven theft crimes almost a year ago has now pled guilty to one count of felony theft scheme. This past week in the Circuit Court in downtown Baltimore a special statewide prosecutor announced the state would only pursue one of the counts in exchange for the guilty plea. The ex-principal will now avoid what would have been a lopsided trial, as the prosecutor had ample evidence connecting the defendant to almost $50,000 of missing school activity funds. The defendant, who is currently out on bail, was not sentenced at the plea hearing. Rather, sentencing has been set for early October on the one felony count that carries a maximum jail sentence of fifteen years. There is also the possibility of hefty fines and mandatory restitution for the charge, which is classified as theft scheme with a value of $10,000 to $100,000. This offense does not carry a minimum mandatory jail sentence, unlike the embezzlement count that was dropped.
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marijuana-269851_640.jpgThe last couple of months have been quiet on the medical marijuana front, and as a result it did not take much of a pot story to produce headlines at a variety of Maryland news outlets. Last Friday a town planner for the Talbot County seat of Easton announced that the site of a former tool manufacturing plant would receive local zoning approval to become a marijuana growing facility. The planner decided that growing legal pot classifies as agriculture, which is proper in all areas of the Eastern Shore town, save for the historical downtown area. Keep in mind that this facility would strictly be for growing, and would have no dispensing capability, or relationship to any potential local dispensary. Whether this actually turns out to be a story of substance remains to be seen, as the growing company who pitched the town planner has not yet received a state license to grow medical pot. But all the downtime created by the Maryland Medical Marijuana Commission’s methodical pace has left the people and consequently the media in a jumpy mood; nearly any small development will make headlines at this point.
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seal-42280_640.pngThe FBI and the Montgomery County Police recently announced the break up of a large-scale drug ring operating out of a residential area near Rockville. Monday during the early morning hours, as many as 100 state, local and federal law enforcement officers raided numerous townhomes in the Bel Pre development, as well as a business in Prince George’s County. The raids yielded a narcotics, multiple firearms, and over $70,000 in cash. All told 18 people were arrested, and now the defendants face felony drug charges in federal court. All but one of the defendants resides in Maryland, with the non-resident being from Pennsylvania. The defendants are charged with conspiracy to distribute heroin and cocaine, and could face other charges based on the evidence that was seized.
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