Levitz
Maryland Criminal Practice
Fall 2014
I. Arrests
a. MD Crim Pro 2-202 – Warrantless arrest
i. Law
1. (a) Crimes committed in presence of police officer – A police officer may arrest w/o 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)
2. (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)
3. (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.
ii. Notes
1. How to know what a felony is?
a. If law says felony = felony
b. If silent = misdeamoner
b. MD Crim Pro 2-203
i. Law
1. A warrantless arrest is permitted for misdemeanors not committed in officers’ presence for very specific circumstances.
a. 1) Unless person is arrested immediately suspect won’t be caught
b. 2) If officer has probable cause defendant may cause physical injury or property damage
c. 3) probable cause to believe suspect may destroy evidence.
c. Special Police Officer
i. Licensed by the state
ii. Have full arrest powers on private property
d. Citizen Arrest
i. Felony
1. At CL, may make an arrest at common law when has reason to believe a felony has been committed and that person committed it.
ii. Misdemeanor
1. when it is committed in presence of citizen and it is for breach of peace.
II. Warrant Arrest
a. Cops go to a judicial officer (Circ Ct Judge, DC Judge, DC Commissioner)
b. Cops present facts
c. Judicial officer determines if PC present, if so gives warrant
d. Notes
i. D arrested with or without warrant shall be taken before judicial officer without unnecessary delay, in no event later than 24 hours
1. – right of prompt presentment –
ii. D freed state busts 24 hour time limit
1. if cops get statement from D, 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
iii. Once circuit court issues warrant, district court including commissioner, has no authority over it
III. Rule 4-213 Initial Appearance of D
a. D arrested and it starts a process
i. Must be taken before a judicial officer
b. Law
i. (a) In District Court – When D 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. (1) Advice of charges – The judicial officer shall inform D of each offense D charged and of the allowable penalties, including mandatory penalties, if any, and must also give D written copies of charges.
2. (2) Advice of right to counsel – The judicial officer shall require D 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 D who is unable for any reason to do so. A copy of the notice shall be furnished to D who has not received a copy of the charging document. The judicial officer shall advise D that if D appears for trial without counsel, the court could determine that D waived counsel and proceed to trial with D unrepresented by counsel.
3. (3) Advice of preliminary hearing (Only for felony) – When a D 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 D of the right to have a preliminary hearing by a request made then or within ten days thereafter and failure to make a timely request will result in the waiver of a preliminary hearing. If D 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.
a. BLUF – 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. (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.
a. Dewolfe – B/c district court commission is deciding whether D should be incarcerated, D has right to lawyer at that point and must be offered one
5. (5) Certification by judicial officer – The judicial officer shall certify compliance with this section in writing.
6. (6) Transfer of papers by clerk – As soon as practicable after the initial appearance by D, 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.
ii. (b) In District Court following summons – When D appears before the District Court pursuant to a summons, the court shall proceed in accordance with Rule 4-301.
iii. (c) In circuit court following arrest or summons – The initial appearance of D in circuit court occurs when D
1. (1) is brought before the court by reason of execution of a warrant pursuant to Rule 4-212 (e) or (f) (2), or
2. (2) appears in person or by written notice of counsel in response to a summons.
3. In either case, if D 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 D of each offense with which D is charged, ensure D has a copy of the charging document, and determine eligibility for pretrial release pursuant to Rule 4-216.
IV. Pre-Trial Release Rule 4-216
a. (a) Arrest without warrant – If D arrested without warrant, judicial officer shall determine whether PC for the arrest.
i. If PC – the judicial officer shall implement the remaining sections of this Rule
ii. If no PC – judicial officer shall release D on personal recognizance, with no other conditions of release and remaining sections of this Rule are inapplicable.
iii. Judicial o
rosecute in circuit court
b. Overview
i. At initial appearance, D told has right to preliminary hearing, waived if D doesn’t ask for it within 10 days
ii. Preliminary hearings only occur in district court
iii. Preliminary hearings are a critical stage of the hearing.
1. Hearing that are critical stages means D have certain rights.
a. One is the right to counsel.
b. Defendant does not have the right to counsel at non-preliminary hearings.
c. Hearings to determine bail or pre-trial release conditions are NOT critical hearings.
2. D’s right at preliminary hearing
a. Right to counsel
b. Right to be present
c. Right to cross examine witnesses who testify, however, defendant has no right to confront (this means hearsay can be used during preliminary hearing)
d. Defendant has NO right to present evidence
e. Defendant can cross examine but can’t produce evidence
f. No right to exclude tainted evidence at preliminary hearing
g. Generally, rules of evidence don’t apply at preliminary hearing
iv. In order to stand trial in circuit court, MUST be a circuit court charging document
1. Preliminary hearing used to determine if there is probable cause to create a charging document (Criminal information).
v. Preliminary hearing is an adversarial proceeding, Prosecutor’s job is to show there is a prima facie case.
c. 2 rules govern
i. Md Rule 4-221 and 4-103 Criminal Procedure (law)
ii. 4-103
1. D may ask for preliminary hearing within 10 days. If D requests preliminary hearing, it should be scheduled within 30 days. Failure to ask for preliminary hearing within 10 days is waiver. He gives up the right
2. If D doesn’t ask for preliminary hearing and 10 days past
a. States attorney office is notified Dt has been arrested, appeared before commissioner and did not ask for preliminary
b. State HAS to file circuit court charging document within 30 days to file charges or charges are dismissed WITHOUT prejudice.
iii. Rule 4-221
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
d. Once court determines PC exists
i. Court may keep or modify prior pre-trial release conditions
e. Clerk’s office, after PC is determined, then notifies states attorney.
i. Within 30 days of findings, state must file circuit court charging document (criminal information).
