Apr 30, 2010 The risk of carrying crack in the same pocket as a cigarette lighter
Today, Maryland’s intermediate appellate court upheld a crack cocaine seizure that accompanied a Terry patdown for weapons followed by reasonable articulable suspicion of the presence of a folding knife that turned out to be a cigarette lighter. The searching officer testified that once his hand entered the defendant’s pocket to retrieve the perceived knife, he felt a bag in which he recognized crack cocaine. Harrod v. Maryland, ___ Md. App. ___ (April 30, 2010). How the police officer knew by mere touch that the bag contained crack is very suspicious, particularly in the light of the scandal earlier this year where New York police arrested two men for possession of alleged crack cocaine that turned out to be harmless candy; the men paid for this debacle with a few days in pretrial detention.
In upholding the crack search, the appellate court said the searching officer’s "testimony established that he recognized crack-cocaine in the baggie that he encountered while legitimately searching the pocket for a knife. Under the circumstances, the sergeant’s seizure of the baggie containing crack-cocaine did not violate the Fourth Amendment. See, e.g., Michigan v. Long, 463 U.S. 1032, 1050 (1983) (‘If, while conducting a legitimate Terry search . . ., the officer should . . . discover contraband other than weapons, he [is not] required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.’)". Harrod v. Maryland.
The trial below was a retrial after a hung-jury mistrial. Detrimentally, after the mistrial was declared, the defense did not re-file a demand for the presence of the chemist. As a result,the defendant was deemed to have forfeited the opportunity to demand the chemist’s presence, and the chemist report came in without testimony.
Moral of the story: (1) Once a cop legitimately finds a hard object in a pocket, watch out for a court-sanctioned search of other items in the pocket.
(2) After a mistrial is declared, re-file all motions and other pleadings.