Home » Blog » Criminal Defense » A lawful detention cannot be predicated upon a mistake of law

A lawful detention cannot be predicated upon a mistake of law

Call Us: 703-383-1100

A "lawful detention cannot be predicated upon a mistake of law." Gilmore v. Maryland, ___ Md. App. ___ (April 25, 2012). Again and again, police profile or otherwise target a person to check for criminal activity — including drug possession, weapons possession, open fugtive warrants, and drunk driving — and only next do they try to find a lawful way to stop the person whether by finding (if not prevaricating on) a moving violation, finding reasonable articulable suspicion to interact with the person, and, their favorite, to just engage (and often harass) someone in conversation without stopping them. Why do cops stop and harass young black males infinitely more often than white lawyers in suits? Profiling.

Such profiling is antithetical to human decency, to the Constitution’s Due Process and Equal Protection guarantees, and to the very reason why we give up any liberty in the first place to have governments. How many hours or days pass before you hear a bigoted comment from someone? Police, prosecutors, and judges come from the general population, so there will be bigots among them. (And if you think that racial, ethnic and religious bigotry somehow avoids certain professions, then how is that possible in a nation that allowed slavery for so long, and in states that had Jim Crow and other forms of racial segregation for so long?) That is another reason to shrink the criminal justice system by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating the death penalty; eliminating mandatory minimum sentencing; and eliminating per se drunk driving laws. In so doing, we will have a less expensive, higher quality and more manageable criminal justice system that can better weed out the bad apples in the first place, and that will contribute tremendously to balancing our overburdened governmental budgets in these tough economic times.

In Gilmore. supra, a cop detained a man who had the gall to park in two parking spaces at once at a liquor store parking lot, thus making it hard for other imbibers to park there. The cop claimed that the post-detention actions of the suspect, Mr. Gilmore, gave him reasonable, articulable suspicion to believe he was armed. The cop alleged that Gilmore answered that he had a knife, and that when the cop pulled out the knife, a bag of drugs was conveniently, for the cop, attached to the knife. Praised be the Maryland Court of Special Appeals for declaring the search unlawful for having been based on an unlawful detention that arose from the cop’s mistaken belief (or invention) that a car parked in two spaces has committed a traffic offense.

Do not just take this as a go-ahead to park in two spaces at a liquor store or elsewhere. The cop could have avoided a problem with the appellate court had he not been found to have detained Gilmore by having demanded his license and registration. Had the cop followed Gilmore into or out of the liquor store, talked with him without asking for the license and registration and without indicating that Gilmore was not free to leave, and then had reasonable articulable suspicion of weapons possession to pat him down, Gilmore would have lost his suppression argument on appeal. Moreover, Gilmore had to suffer imprisonment until winning on appeal.
Nevertheless, I feel inclined to park in two spaces today in honor of Bruce Wayne Gilmore. Congratulations to him and his trial and appellate lawyers for this victory!