October 21, 2009|By Peter Hermann | Peter Hermann,peter.hermann@baltsun.com
When you tell someone you "got arrested," it's a safe bet you mean a cop put you in handcuffs and took you to jail. Turns out in Maryland you can "get arrested" without any of those things happening. In fact, the law says you can "be arrested" by a police officer even if that very same police officer insists he didn't arrest you.
And that can affect what happens later, should you be charged with a crime.
It comes down to this: At what point does a confrontation between citizen and cop meet the legal definition of an arrest? In court opinions, including one last week from Maryland's Court of Appeals that overturns a conviction of a Salisbury man found with marijuana, it's a matter of semantics and it has nothing to do with handcuffs.
Confused?
Listen to the lawyers.
George Burns, an attorney with the Office of the Public Defender's appellate division who argued the case, said the ruling "refined" established case law regarding what constitutes an arrest.
Wicomico County State's Attorney David R. Ruark said the decision "overruled" 10-year-old precedent and is "essentially making some significant changes to Maryland law."
This could affect how police conduct "stop and frisks," a tactic widely used by Baltimore officers to clear suspected drug corners resulting in tens of thousands of street detentions a year and prompting complaints that cops are illegally stopping and searching people. Some of these stops could actually be arrests even if no one goes to jail.
Both Ruark and Burns said that this strange definition that turns the traditional meaning of "arrest" on its head appears to be unique to Maryland, and it complicates what police officers do on the street.
On July 21, 2006, Officer James D. Russell approached two men sitting on a porch on Baker Street in Salisbury, thinking one of them had an outstanding arrest warrant. When the other man "stood up, I could see he had a bulge in his pocket and the odor of marijuana became ever stronger when he stood," the officer testified at trial. "I removed the bag of marijuana from his pocket."
But the officer didn't arrest Antonio G. Belote at that moment. He said in court that he was on bicycle patrol and was unable to transport the suspect. He intended to file charges later, but then got delayed due to sickness and a broken right hand. He ultimately arrested Belote, in the traditional sense, two months later.
Belote was convicted and sentenced to 18 months in prison.
At issue is whether Officer Russell had "arrested" Belote when he first encountered him on the porch. Ten years earlier, the court upheld a conviction of a Baltimore man who was stopped in a drug sting, taken into custody and then released, only to be arrested weeks later.
In that case, the courts ruled that officers had technically "arrested" the man during his first encounter because they physically detained him and took information from his ID. Last week, the appeals court said the Belote case differed because Officer Russell never actually detained the suspect and never took his identification.
That means, the court ruled, the man was never "arrested" on his porch and his being put in handcuffs and charged two months later was improper. The court also ruled that the officer had illegally searched Belote because such searches can only be done if there is a reasonable suspicion the suspect is armed. However, the court ruled that the odor of marijuana gave the officer probable cause to arrest Belote if he had done so at that moment. Then the officer could have legally searched the suspect and the charges would have been upheld.
The court vacated Belote's conviction.
"The real thing here is that they could've arrested my client but they didn't," Burns said.
Explained Ruark: "The bottom line is, if an officer has probable cause to arrest, the wisest route to take is to engage in a full-blown custodial arrest at that time."
Now police officers have to consider how much time elapses between their initial encounter with a suspect and when they file charges, and whether their questions and actions constitute an actual arrest even if an arrest is not what they had intended.
Just where that line is, Ruark said, "remains to be seen."
Three judges dissented and said there should be no distinction between arrests made on scene or pursuant to warrants at a later time.
It's confusing enough for the lawyers. Just think of how police officers should interpret this. "It's very tough out there on the streets for police officers to make these fine-line distinctions," Ruark said.
