Drug case stirs one judge's sense of humor


February 12, 2010|By Peter Hermann | peter.hermann@baltsun.com

Judge Charles E. Moylan Jr. is well-known for introducing literary references and colorful prose to liven the opinions he writes for Maryland's second-highest court. But he might have outdone himself this month on what could have been a dry, routine drug case out of Cecil County.

He put in chapters:

"There is nothing wrong with investigative opportunism."

"The shelf life of a traffic stop."

"An incredible journey."

He wrote about Confederate Gen. Stonewall Jackson, the right of a police dog to sniff, and he even included a section partly written in German - "Bleiben sie, bitte, mein hund!"

Moylan and two other judges on the Court of Special Appeals unanimously upheld the conviction of Leshone Jackson, who in 2007 was caught with 1,550 packets of heroin hidden in a rented Pontiac Grand Prix with South Carolina tags. Jackson had been stopped on Interstate 95 in the northeastern tip of Maryland for driving 75 mph in a 65-mph zone.

Jackson challenged the case on many grounds, all of which Moylan shot down, sometimes using sarcastic wit mocking the legal theories of the defense.

First off, the judge said Maryland Trooper David McCarthy made a legitimate traffic stop that "was based on speed, nothing else," and it didn't matter whether Jackson was driving 100 mph or 2 mph over the limit.

Moylan wrote it didn't matter whether McCarthy used Jackson's speed as a ploy - as the suspect argued - to stop the car and search for drugs, since the stop itself was legal. And calling in a drug-sniffing dog named Leco to search outside the car didn't constitute an unreasonable search and seizure barred by the Fourth Amendment.

"A dog sniff can be neither reasonable nor unreasonable ... because the Fourth Amendment can be neither satisfied nor violated where it does not apply," Moylan wrote. "So long as the police agent, human or canine, is in a place where that agent has a constitutionally unassailable right to be, it is free to employ its olfactory senses in any way it wishes. The dog is free to smell cocaine or marijuana as the officer is free to smell the roses or the garbage or the breath of new-mown hay. Neither dog nor man needs a judicial permission slip to sniff the air."

Jackson argued that calling for the police dog prolonged the car stop, thus making his detention unlawful because he was held beyond what was reasonable for a speeding ticket. But Moylan noted that Leco arrived within minutes and that the search was over even before the trooper had finished writing the citation.

Moylan wrote there was "no break between two distinct detentions but only a single, unbroken detention that for a time enjoyed dual and overlapping purposes."

The judges also ruled that the trooper had ample suspicion to suspect drugs - the driver was nervous, had several air-fresheners, had two cell phones, was driving a car on a noted "drug corridor" with out-of-state plates and a rental agreement in the name of a woman. The driver told the trooper he had just come from Hagerstown and had stopped at the Travel Plaza, which was, the court noted, "the direction he was going, not the direction he was coming."

Moylan added: "There was, moreover, no way, short of a flanking maneuver through Harrisburg and Philadelphia worthy of Stonewall Jackson" that the other Jackson could have taken such a route.

But Moylan saved his best for last. Jackson argued that the trooper commanded the dog to alert for drugs - by sitting - instead of the dog actually sitting on his own. They played video and audio from a camera in the police car, in which the trooper commands Leco in German.

The judge ruled that the trooper ordered Leco to "bleiben," or "to stay," but after the dog had already alerted for drugs.

Moylan concluded: "Once we have filtered out the extraneous static, we are left with a legitimate stop followed by a legitimate eight-minute detention followed by a legitimate dog sniff. That is all there is to it."

Should Jackson appeal, let's see if the Court of Appeals has the same opinion, and a sense of humor.

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