Appeals court dismisses 'drug-free zone' charges

February 13, 1993|By Norris P. West | Norris P. West,Staff Writer

Maryland's highest court has dismissed charges against a man arrested for loitering and drug violations in a "drug-free zone" in Baltimore but delayed a decision on whether the city's zones are constitutional.

The Maryland Court of Appeals' decision on Wednesday came two days after the high court upheld a separate state law setting up drug-free zones within 1,000 feet of schools in Maryland.

Baltimore's ordinance provides for misdemeanor penalties against anyone loitering to sell narcotics in areas designated as drug-free zones. Baltimore's zones are not limited to areas close to schools.

Earl Powers, 20, of the 1500 block of W. Mulberry St. was convicted of violating the city's ordinance and breaking two other drug-distribution laws.

He appealed, and the state's high court decided to take his case before it was decided by the intermediate appellate court.

Without confronting the constitutionality of the zones, the high court overturned the conviction on the basis that Mr. Powers was arrested during an illegal search and seizure. The court said the ordinance required that a police officer tell him to leave the area and to arrest him only if he refused.

Mr. Powers was standing in a drug-free zone at the corner of Lemmon and Addison streets on May 24, 1991. A police officer approached and asked him why he was loitering, told him he was in a drug-free zone and advised him to leave.

Four hours later, Mr. Powers was standing on Lemmon Street with several other people. The officer testified that she saw Mr. Powers put a large roll of currency into his pocket. She told him that she had warned him about loitering in a drug-free zone and then arrested him. During a subsequent search of Mr Powers, police said, they seized seven bags of crack cocaine, 19 glassine bags of heroin and $70.

In an opinion written by retired Judge Charles E. Orth Jr., the court ruled that during the first encounter, Mr. Powers was not required to leave because police had insufficient reason to believe he was selling drugs.

The court ruled that the request to leave did not carry over to the second encounter.

"Since the required request to leave was not made, his arrest was illegal," the court ruled.

The court also ruled that the seized drugs could not be used in the trial because evidence from an illegal search cannot be used at trial.

The court ordered a new trial, but Gary E. Bair, chief of criminal appeals for the attorney general, said prosecutors are not likely to retry Mr. Powers without the evidence.

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