Civil Law Update

CRIMINAL LAW UPDATE By Susan Zellweger

You might need more than just the Odor of Marijuana…

The Fourth Amendment to the United States Constitution guarantees “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” and provides that “no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” United States Constitution, amend IV. The Maryland Declaration of Rights, Article 26 states that “all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive.” A warrantless search is presumptively unreasonable. “Whether a particular warrantless action on the part of the police is reasonable under the Fourth Amendment depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106 (1977). In 2014, the Maryland General Assembly decriminalized the possession of less than ten grams. It is now a civil offense under Maryland Criminal Law section 5-601©(2) to possess less than ten grams of marijuana. .

Many thanks to Nancy Forster for presenting The Latest Fourth Amendment Cases to the Baltimore County Bar Association on Thursday, May 20, 2021. During her class, Ms. Forster discussed three cases that address the odor of marijuana and whether it alone gives police probable cause to search a car (Robinson), probable cause to arrest a suspect (Lewis), and reasonable articulable suspicion to stop a suspect (In Re: D.D.). In In Re D.D., 2021 WL 1651304 (CSA, April 28, 2021), the Court of Special Appeals of Maryland addressed the question… does the odor of marijuana, by itself, provide police reasonable suspicion of criminal activity? The Court in D.D. explained that there are two types of seizures: an arrest and an investigatory stop. Under State of Maryland v. Pringle, 540 U.S. 366 (2003), the police may conduct a warrantless arrest if the officer(s) have reason to believe that a felony has been committed or a felony or misdemeanor has been committed in their presence. Terry v. Ohio, 392 U.S. 1 (1968) allows an officer to conduct an investigatory stop when the officer has “reasonable suspicion, supported by articulable facts, that criminal activity may be afoot.” In D.D., police responded to an apartment complex in Prince George’s County, after receiving a call about some individuals smoking CDS and playing loud music in an apartment complex. When the police arrived at the location in question, they describe seeing five males dressed in baggy clothes, walking up the steps from the basement level of the apartment building, and smelling a heavy odor of marijuana as the males walked past. The males were evasive about who lived in the building when asked, and were ordered to sit on the building steps. When D.D. was frisked, the officer recovered a gun. The Court determined that the “odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession.” Therefore, odor of marijuana alone cannot provide police with the required reasonable suspicion to stop a suspect. In D.D., the Court referenced Lewis v. State of Maryland (470 Md. 1 (2020). In this case, after receiving a tip that Mr. Lewis was armed with a handgun, the police tracked him down in a store located in “high crime area” in Baltimore City. An officer testified that he stopped Mr. Lewis in the store, based on “the odor of marijuana and the information [he] received to further investigate.” Mr. Lewis was arrested and searched incident thereto. A gun and a small amount of marijuana were recovered. The relevant exception to the warrant requirement at play in Lewis is the search incident to arrest exception. (Chimel v. California, 395 U.S. 752 (1969).) The Court of Appeals held in Lewis that the police

CRIMINAL LAW UPDATE By Susan Zellweger

did not have probable cause to arrest a suspect and what had been seized should have been suppressed. The smell of marijuana alone is not sufficient to establish probable cause to arrest and search a person incident to arrest. The officers in Mr. Lewis’ case had no idea of the quantity of marijuana, if any at all, that Mr. Lewis may have possessed. As such, they did not have probable cause to believe that Mr. Lewis had committed a felony or was committing a felony or misdemeanor in their presence. To justify an arrest and subsequent search of a suspect, the police would have to have probable cause to believe that that person is in possession of a criminal amount of marijuana. In Pacheco v. State (465 MD. 311 (2019), the Court discussed search incident to arrest and automobile exceptions. Probable cause is a necessary prerequisite for both. In this case, officers noticed a “suspicious vehicle,” occupied by Mr. Pacheco parked behind a laundromat. Upon closer approach, they smelled the odor of marijuana and saw a marijuana cigarette in the vehicle. When it was recovered, the officer testified, it was immediately apparent to him that the cigarette weighed less than ten grams. Nonetheless, the officers ordered Mr. Pacheco out of the car, searched him and recovered cocaine from his person. Mr. Pacheco was given a civil citation for marijuana, and charged with Possession with Intent to Distribute the cocaine seized. The Court of Appeals found the search of Mr. Pacheco’s person to be unreasonable because the police could not have known that Mr. Pacheco possessed a criminal amount of marijuana when all they had initially was one cigarette. There was no proof of his having committed a felony, or presently committing either a felony or misdemeanor, so no probable cause to arrest existed. However, the search of Mr. Pacheco’s car was determined to be valid under the automobile exception. The automobile exception, in Carroll v. United States, 267 U.S. 132 (1925), requires “probable cause to believe the vehicle contains contraband or evidence of a crime.” (Carroll at 321.) The justification behind the automobile exception lies in the mobility of the vehicle, and a person’s reduced expectation of privacy therein. In Robinson v. State of Maryland, 451 Md. 94 (2017), the Court said that the smell of marijuana emanating from a stopped vehicle, against which Mr. Robinson was leaning, gave the police probable cause to search the car. This is because marijuana in any quantity was and is still considered contraband under Maryland law. (Bowling v. State, 227 Md.App. 460 (2016). The Court in Robinson noted that “[d] ecriminalization is not the same as legalization.” The odor of marijuana gave police probable cause to search the vehicle in both Pacheco and Robinson. “Possession of ten grams or more of marijuana, crimes involving the distribution of marijuana, and driving under the influence of a controlled dangerous substance have not been decriminalized in Maryland, and thus, the odor of marijuana emanating from a vehicle provides probable cause to believe that the vehicle contains evidence of a crime, and a law enforcement officer may search the vehicle under such circumstance.” (Robinson at 325-26).

CIVIL LAW UPDATE By Ceecee Paizs

Review of the Amicus Curiarum for April and May 2021 revealed the following civil cases of interest: THE COURT OF APPEALS:

Lolita D. Fowlkes v. Shabbir Ahmed Choudhry, No. 6, September Term 2020, filed March 26, 2021. Opinion by Battaglia, Lynne, Judge In March 2013, Ms. Fowlkes’ daughter, Yenita, died from complications related to an infection after receiving treatment from various medical providers, including Dr. Shabbir Choudhry. At trial, Ms. Fowlkes sought both economic and non-economic damages. The only evidence presented at trial regarding the economic damages was testimony from Ms. Fowlkes regarding the household tasks that her daughter performed for her. At the of close of her case and at the close of evidence, Dr. Choudhry, the only medical provider held liable, moved for judgment on the issues of the economic damages claim. The trial court denied both motions and the jury awarded $500,000 in economic and $500,000 in non-economic damages. Dr. Choudhry appealed and in Choudhry v. Fowlkes, 243 Md. App. 75 (2019), the Court of Special Appeals agreed with Dr. Choudhry, holding that while a parent may recover economic damages for the loss of household services in a wrongful death claim for an adult child, Ms. Fowlkes had not produced sufficient evidence to have the claim submitted to a jury. verdict on the issue of economic damages for household services a legally cognizable expectation of continued receipt of such services must be presented. An adult child’s intent to continue to provide such services amy be proven by evidence of a written or verbal promise to provide such services or by evidence of actions taken by the decedent from which their intent may be inferred. Ms. Fowlkes failed to present sufficient evidence that her daughter intended to continue providing household services in the future.

THE COURT OF SPECIAL APPEALS:

Roberto Facey, sr. v. Esther Facey, No. 1183, September Term, 2019, filed February 26, 2021. Opinion by Leahy, Andrea, Judge At the time of the couple’s divorce in 2006 after a nearly forty-year marriage, Roberto executed a “Promissory and Confessed Judgment Note” in favor of Esther. In 2008 and 2009, before any payments were made, Esther suffered a series of debilitating strokes. As a result, in 2011, the couple’s daughter, Soralla, used a 2008 Power of Attorney to file a “Complaint for Confession of Judgment” and granted the confessed judgment for $75,000. The court denied Roberto’s motion to vacate that judgment based on allegations of duress, undue influence, misrepresentation, and the statute of limitations. The Court of Appeals affirmed, noting that in its Over seven years later, in October 2018, Roberto decision in Choudhry, the Court of Special Appeals challenged the 2011 judgment claiming that the articulated a three-part “test” to evaluate claims for Power of attorney relied upon by Soralla was economic damages arising from the loss of household fraudulent. The trial court held that while sufficient services performed for a parent by an adult child prior evidence was adduced at an evidentiary hearing to to her death: A beneficiary must present evidence establish that the Power of Attorney was both that (1) the household services performed had a fraudulently procured and a forgery, the forgery did market value; (2) the decedent had been regularly not constitute extrinsic fraud triggering the court’s providing the services in the past; and (3) the duration revisory power under Maryland Rule 2-535(b). during which the decedent, had she lived, would have The Court of Special Appeals affirmed, reaching two continued to provide the services. The COSA held holdings: First, that the circuit court did not err in that Ms. Fowlkes had failed to satisfy the third determination that the fraud in this case was intrinsic element of the test and the Court of Appeals agreed. and not extrinsic for three reasons: 1) it did not The Court held that in order to survive a directed

CIVIL LAW UPDATE By Ceecee Paizs

prevent an adversarial trial; 2) it pertained to facts contained within the original motions hearing; and 30 it did not impact the jurisdiction of the court. Second, the Court held that there was no jurisdictional mistake in this case. The circuit court had personal jurisdiction over Roberto, who was properly served with the process and subject matter jurisdiction over the entry of the Confession of Judgment. J.A.B. v. J.E.D.B., Case No. 519, September Term 202, filed April 27, 2021. Opinion by Berger, J.A.B. (Father) filed a divorce claim against J.E.D.B. (Mother). The parties have two children. There were allegations of abuse by each party against the other during the marriage. The trial court expressly found that Father was abusive to Mother throughout the course of their marriage and that any abuse by Mother was reactive to Father’s abuse and coercive control over her. Citing the parties’ inability to communicate effectively and Mother’s genuine fear of Father, the trial court awarded sole legal custody to Mother. After consideration of the factors in Taylor and Sanders, the trial court also considered the impact of Family Law §9-101.1(c) due to the abuse of Mother by Father. The court awarded Mother primary physical custody of the children with Father having unsupervised visitation with the children every other weekend and during the week.

The Court of Special Appeals affirmed, holding that the trial court did not improperly prioritize the protection of Mother over the best interests of the children. The Court explained that Family Law §9101.1(c) requires that if a court finds that a party has committed violence against the other parent of the party’s child, the court must make arrangements for custody and visitation which best protect both the minor children and the victim of the abuse. Further, the Court noted that the trial court considered Family Law §9-101.1(c) as the last factor in the Memorandum Opinion and that the provision contains the word “shall,” which means compliance with the statute is mandatory. Further, the Court did not find a reason to disturb the trial court’s findings of the best interests of the children. Finally, the Court considered Father’s claim that the trial court abused its discretion in refusing to allow the parties’ former neighbor to testify telephonically. Citing Maryland Rule 2-803, the Court held that the neighbor was not an essential participant to the proceedings because the testimony would have been cumulative of other testimony and that the demeanor and credibility of the neighbor would not be ascertainable telephonically. Gregory Haines v. Gretchen Vogel, No. 1789, filed April 7, 2021. Opinion by Wells, Mr. Haines (Father) sued Gretchen Vogel (Mother), his former spouse, claiming that her behavior towards him amounted to intentional interference with his visitation and sued her for money damages. He also claimed that Mother’s conduct intentionally inflicted emotional distress upon him. His claim was dismissed, with the trial court concluding that his complaint lacked a required element of a claim for intentional interference with parental relations, that being an allegation of physical removal of the children. Further, the court concluded that Mother’s conduct did not amount to an allegation of intentional infliction of emotional distress.

The Court of Special Appeals affirmed, reviewing three cases cited by Mother: (Lapides v. Trabbic, 134 Md. App 51 (2000), Hixon v. Buchberger, 306 Md. 72 (1986), Khalifa v. Shannon, 404 Ms. 107 (2008)) looking at the history of intentional interference with parental relationship cases in Maryland and other jurisdictions. The Court concluded that the tort requires the torts of abduction and harboring of a child from one parent by another. To properly allege the tort of intentional interference with parental relationship a parent’s conduct must be (1) intentional, (2) outrageous, and (3) involve the physical removal and harboring of the child from the parent. The Court found that Father had not alleged sufficient facts to show that Mother’s conduct was “outrageous,” nor, more importantly, that she physically removed the children. Other remedies, such as a contempt proceeding or a motion to modify

CIVIL LAW UPDATE By Ceecee Paizs

custody and/or visitation were available to Father and were more appropriate. Turning to the allegation of intentional infliction of emotional distress, the court held that such allegations must meet four requirements; (1) the conduct at issues was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the extreme and outrageous conduct and the resultant distress; and (4) the emotion distress was severe. Batson v. Shiflett, 325 Md. 684, 734 (1992). Father failed to allege that Mother’s conduct was outrageous or that he was so debilitated by that conduct as to be unable “to tend to necessary matters.” Andrew Wasyluszko v. Lisa Wasyluszko, No. 2220, September Term 2019, filed April 28, 2021. Opinion by Beachley, Donald, Judge At the time of the parties’ marriage in August 1998, Husband owned several retirement and non-retirement accounts. For purposes of its monetary award analysis, the trial court determined that four accounts were marital, a Fidelity 403(b). Janus Henderson, DWS Equity Fund and Fidelity IRA and would be considered as marital for equitable distribution. The Court of Special Appeals vacated the monetary award and attorneys’ fees. The Court held that the trial court erred in treating three out of the four accounts as exclusively marital property. Sufficient evidence was presented concerning all but the Fidelity IRA account to show that at least some of the funds were non-marital. The evidence established that both the Fidelity 403(b) and the Janus Henderson accounts, although they fluctuated during the marriage, never went below the balance in these accounts at the time of the marriage. Likewise, the DWS Equity fund balance at the time of the marriage was established, and the parties stipulated to the fact that Husband made five $200 contributions to that account during the marriage. The premarital interests in each account survived and should have been treated as non-marital property. As to Husband’s claim that the trial court failed to explain its calculations of the monetary award, the Court held that a trial court is not required to explain how its consideration of the factors in Family Law §8-205(b) resulted in its monetary award.