Jun 04, 2012 Running is not resisting. One does not usually possess drugs found in someone else’s flower bed
Mark Terrill Rich was a passenger in a vehicle stopped for having a taillight out. (Keep your car in good working order to reduce the risk of police stops.) Rich v. Maryland, ___ Md. App. ___ (May 31, 2012).
The police claimed that the drver and Rich consented to a search. (Do not consent to searches.) The police officer says he subsequently removed Rich’s hat resulting in a bag of marijuana falling in his hand. (Police will interpret a consented-to search request to include being permitted to look inside one’s hat.)
Then Rich ran, and he got charged with resisting arrest as a result. Praised be the Rich court for finding that merely fleeing before being in the physical custody of the police is not resisting arrest. The main thrust of the Court’s reasoning follows:
Having determined that resistance by force or threat of force is a necessary element of the offense of resisting arrest, we address next whether mere flight, without more, is sufficient to establish this element. We hold that it is not. We reach this conclusion based upon the generally accepted definitions of the word “resist” as opposed to “hinder” or “obstruct,” the purpose behind proscribing resisting arrest, and the absence of any reported Maryland case where flight alone sufficed to convict a defendant of the offense.
Webster’s Third New International Dictionary defines resist as to withstand the force or the effect of: be able to repel or ward off; to exert oneself to counteract or defeat: strive against: OPPOSE. Webster’s Third New International Dictionary 1932 (1986)
[hereinafter Webster’s]. The American Heritage Dictionary offers a similar definition: [t]o strive to fend off or offset the actions, effects or force of; [t]o remain firm against the actions, effects, or force of; withstand. American Heritage Dictionary 1484 (4th ed. 2000);
see also Bouvier’s Law Dictionary 2921 (8th ed. 1914) (defining resistance as the opposition of force to force). The terms hinder and obstruct have a much broader reach and encompass more passive activity. See,e.g., Webster’s at 1070 (defining hinder as to make slow or difficult the course or progress of: RETARD, HAMPER; to keep from occurring, starting, or continuing: hold back: PREVENT, CHECK); id. at 1559 (defining obstruct as to be or come in the way of: hinder from passing, action, or operation: IMPEDE, RETARD). Thus, Perkins has observed that mere flight to avoid apprehension does not constitute resisting an officer because there is a distinction between avoidance and resistance or obstruction. See Perkins, Criminal Law at 555 (quoted in In re Nawrocki, 15 Md. App. 252, 263 (1972)); accord State v. Morin, 736 N.W.2d 691, 698 (Minn. Ct. App. 2007) (Fleeing a police officer, although a physical act, is of a significantly different nature from obstructing or resisting a police officer.); cf. Graham v. Connor, 490 U.S. 386, 396 (1989) (distinguishing between actively resisting arrest or attempting to evade arrest by flight under a Fourth Amendment analysis for reasonableness of the use of force).
The Maryland Court of Appeals recognized the distinction between resisting arrest and avoiding arrest in Titus v. State, 423 Md. 548, 552 (2011), in which the Court analyzed the elements of the common-law offense of obstructing and hindering a police officer in the performance of his duty. Writing for the Court, Judge Greene began by discussing the scholarly consensus on the conduct proscribed by the crime, noting as follows¦
Unfortunately, Rich’s ordeal did not end there, because a woman living nearby his incident scene handed over to the police some cocaine in her flowerbed — with her home being near the place the police finally tackled Rich — claiming she had no reason to believe that anyone was there after the time of Rich’s incident. Amazingly, the trial judge refused to dismiss that count, and the jury convicted of possession with intent to distribute that cocaine.
You see all the trouble that followed from Mark Rich’s riding in a car with a burnt-out taillight with a personal-use amount of marijuana in his hat, followed by allegedly consenting to a search?
By the way, the stopping police officer claimed that he was on drug patrol with a K-9 officer with a drug-sniffing dog. Moreover, an online docket search shows that Mr. Rich is a young black male (born 1979) arrested in Caroline County, on Maryland’s Eastern Shore, which certainly did not escape Maryland’s shameful segregationist past that wend strong rght into the 1960’s.
Just say no to searches. No. Nyet. Nein. No, officer. No, sir. No, ma’am. No.