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A tale of two states on preludes to drug transactions and confidential informants

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Bill of Rights. (From the public domain.)

If people wanted to shop the jurisdictions where they commit crimes, Maryland is a more hospitable place when it comes to a confidential informant’s providing a visual description of innocent-looking activity, even if the informant says that the activity is a prelude to a drug transaction.

Last month, Maryland’s Court of Appeals reversed a drug conviction resulting from an arrest and search that arose solely from an insufficiently-corroborated tip by a confidential informant that the defendant would be arriving at a shopping center with a large amount of marijuana, where the police did not see any evidence of a possible transaction with the defendant. Elliott v. Maryland, __ Md. __ (Dec. 21, 2010).

In a scenario that does not look materially different — other than the jurisdiction deciding the case — today Virginia’s intermediate appellate court came to an opposite conclusion and affirmed such a conviction. Byrd v. Virginia, ___ Va. App. ___ (Feb. 1, 2011). Hopefully Virginia’s Supreme Court will reverse.