Maryland Criminal Practice
Professor Dana Levitz
Arrests
§ 2-202. Warrantless arrests – In general.
(a) Crimes committed in presence of police officer – A police officer may arrest without a warrant a person who commits or attempts to commit a felony or misdemeanor in the presence or within the view of the police officer. (In officer’s view)
(b) Probable cause to believe crime committed in presence of officer – A police officer who has probable cause to believe that a felony or misdemeanor is being committed in the presence or within the view of the police officer may arrest without a warrant any person whom the police officer reasonably believes to have committed the crime. (What officer sees gives him probable cause)
(c) Probable cause to believe felony committed – A police officer without a warrant may arrest a person if the police officer has probable cause to believe that a felony has been committed or attempted and the person has committed or attempted to commit the felony whether or not in the presence or within the view of the police officer.
How do officers know what felony is? It is what the statute says it is. If statute says it is a felony, it is. It is in the Maryland Code. Federally, a crime with a maximum sentence of more than one year is a felony.
A warrantless arrest is permitted for misdemeanors not committed in officers’ presence for very specific circumstances. 1) Unless person is arrested immediately suspect won’t be caught 2) If officer has probable cause defendant may cause physical injury or property damage 3) probable cause to believe suspect may destroy evidence.
Special Police Officer – usually security employed companies, receives special police commission by Maryland State Police, and they are only police at the specific company – they may arrest people who commit offenses at the properties he works for.
A private citizen at common law may make an arrest at common law when he has reason to believe a felony has been committed and that person committed it.
A private citizen can arrest for misdemeanor when it is committed in presence of citizen and it is for breach of peace.
A shopkeeper can detain a person for a misdemeanor if shopkeeper believes person is stealing. If thief steals steaks, employee can detain until thief drops steaks. Shop keeper then, under MD law, must release. A&P v. Paul
Warrant Arrests – police go to commission, and present facts – or to judge – to get arrest warrant – judicial officer will determine if probable cause is there and will issue warrant – judicial officer issues warrant – police then authorized to arrest and bring in front of judicial officer – defendant who has been arrested with or without warrant shall be taken before judicial officer without unnecessary delay, in no event later than 24 hours – right of prompt presentment – if this fails to happen – if police obtain statement from that defendant, that statement will not be available to be used by state in court other than for rebuttal – typically taken in front of district court commissioner, cause they work shifts and work at every county
Once circuit court issues warrant, district court including commissioner, has no authority over it
Rule 4-213. Initial appearance of defendant
(a) In District Court following arrest – When a defendant appears before a judicial officer of the District Court pursuant to an arrest, the judicial officer shall proceed as follows: 1-4 MUST be in writing:
(1) Advice of charges – The judicial officer shall inform the defendant of each offense with which the defendant is charged and of the allowable penalties, including mandatory penalties, if any, and shall provide the defendant with a copy of the charging document if the defendant does not already have one and one is then available. If one is not then available, the defendant shall be furnished with a copy as soon as possible.
(2) Advice of right to counsel – The judicial officer shall require the defendant to read the notice to defendant required to be printed on charging documents in accordance with Rule 4-202 (a), or shall read the notice to a defendant who is unable for any reason to do so. A copy of the notice shall be furnished to a defendant who has not received a copy of the charging document. The judicial officer shall advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel.
(3) Advice of preliminary hearing (Only for felony) – When a defendant has been charged with a felony that is not within the jurisdiction of the District Court and has not been indicted, the judicial officer shall advise the defendant of the right to have a preliminary hearing by a request made then or within ten days thereafter and that failure to make a timely request will result in the waiver of a preliminary hearing. If the defendant then requests a preliminary hearing, the judicial officer may either set its date and time or notify the defendant that the clerk will do so. Have 10 days to ask for preliminary hearing. If fail to ask for preliminary hearing, you will have waived preliminary hearing. Only for felony.
(4) Determine Pretrial release conditions – The judicial officer shall comply with Rule 4-216 governing pretrial release. A person arrested and sets condition the person can’t meet, the person stays in custody. That person will appear the next court session before a judge and the judge can set any pre-trial release condition he wants.
(5) Certification by judicial officer – The judicial officer shall certify compliance with this section in writing.
(6) Transfer of papers by clerk – As soon as practicable after the initial appearance by the defendant, the judicial officer shall file all papers with the clerk of the District Court or shall direct that they be forwarded to the clerk of the circuit court if the charging document is filed there.
(b) In District Court following summons – When a defendant appears before the District Court pursuant to a summons, the court shall proceed in accordance with Rule 4-301.
(c) In circuit court following arrest or summons – The initial appearance of the defendant in circuit court occurs when the defendant (1) is brought before the court by reason of execution of a warrant pursuant to Rule 4-212 (e) or (f) (2), or (2) appears in person or by written notice of counsel in response to a summons. In either case, if the defendant appears without counsel the court shall proceed in accordance with Rule 4-215. If the appearance is by reason of execution of a warrant, the court shall inform the defendant of each offense with which the defendant is charged, ensure that the defendant has a copy of the charging document, and determine eligibility for pretrial release pursuant to Rule 4-216.
Rule 4-216. Pretrial release
(a) Arrest without warrant – If a defendant was arrested without a warrant, the judicial officer shall determine whether there was probable cause for the arrest. If there was probable cause, the judicial officer shall implement the remaining sections of this Rule. If there was no probable cause, the judicial officer shall release the defendant on personal recognizance, with no other conditions of release, and the remaining sections of this Rule are inapplicable. Judicial officer will determine if there was probable cause for arrest. Commissioner will look at statement of charges. Gerstein v. Pugh hearing
If defendant is arrested and charged with crime where there is life imprisonment, commissioner cannot set any pre-trial release conditions
If defe
iminary hearing is used to determine if there is probable cause to create a charging document.
Preliminary hearing is an adversarial proceeding. Prosecutor’s job is to show there is a prima facie case.
Maryland Rule 4-221 – Preliminary Hearing:
1) Defendant is given charging document
2) State call your first witness or present evidence without calling witness
3) Judge will rule on if there is or isn’t probable cause to have the trial
Preliminary hearings are used primarily by defense as a tool for discovery
Once court determines probable cause exists, court may keep or change prior pre-trial release conditions
Clerk’s office, after probable cause is determined, then notifies states attorney. Within 30 days of findings, state must file circuit court charging document (criminal information).
There must be a charging document in order for a defendant to stand trial in circuit court. Criminal information is a charging document.
Can’t file criminal information and defendant request preliminary hearing and there was not found to be any probable cause. State can file criminal information and defendant waived preliminary hearing.
If no probable cause is found at preliminary hearing, charges dropped, defendant released and defendant released but jeopardy is not attached. State can still go to grand jury and get an indictment (which is a circuit court charging document).
If no probable cause is found, Court may amend charges to have the trial in district court, nolle pros (terminate prosecution) case, or stet case (indefinite postponement). If state offers to stet a charge, agree to it. Stets can be expunged after a period of time.
If state fails to file within 30 days or fails to amend or fails to nolle pros or stet, district court shall order dismissal, without prejudice.
4-103 Maryland Code Pretrial Procedures and 4-221 Maryland Rules, Pretrial Procedures are inconsistent – 4-103 says there can be a preliminary hearing after a grand jury indictment while 4-221 says there can’t. Rule trumps statute, there CANNOT be one.
Grand Jury
In Maryland, there is no constitutional right to an indictment by grand jury. One can only stand trial if there is either a criminal information or indictment charging document.
Only way to get an indictment is for grand jury to issue it.
A grand jury is 23 citizens from the venue of the court selected from voter rolls or drivers that happen to live in that venue. They are selected randomly, out of a computer. Usually sit in terms of court, 4 month terms. In federal court, they sit for 6 months. They can sit every day or once a week or every two weeks. Baltimore city grand jury sits every day, county sits twice a week. No special education or training to be a grand juror. They meet in private and are sworn to secrecy and are sworn to indict no person based on envy, hatred, or ill will. Grand Jury is a tool of the prosecutor.
Grand Jury has three functions:
1) Charging – Determine whether there is probable cause to be prosecuted.
2) Investigation
3) Supervisory function
