Drugs, called “controlled dangerous substances”/ CDS under the law, are illegal. But is a pipe?

Depending on the surrounding environment, any inanimate object could conceivably constitute paraphernalia.

Seasoned criminal defense lawyers in Baltimore Attorney Eric T. Kirk MD know that the definition of drug paraphernalia is not finite. It can be anything. Creative prosecutors have successfully argued that essentially anything can be a delivery facilitator for the consumption of narcotics. A court will look to the circumstances surrounding alleged used and enjoyment of contraband. the  A court or a jury is instructed to consider a variety of factors, in fact, thirteen factors. Some of these include:

  • the presence of residue;
  • are there legitimate uses;
  • expert testimony;
  • prior convictions;
  • proximity to contraband, and
  • whether the owner is a person in the business of selling tobacco.

Possession of paraphernalia is sometimes seen as a throwaway, or fallback charge. One theory is just to charge every possible crime.

What is Considered Drug Paraphernalia?

The other theory is that even there is no conviction for the target offense such as possession or distribution, then at least there would be some penalty for the perceived lesser offense. The reality is, this can be a serious charge. You should care. While a first conviction leads to a fine, a second conviction carries a possible two year jail sentence.

I extend a complimentary meeting to anyone accused of a crime. During this session we will evaluate the evidence, assess the strength of the State’s case, and develop the most effective defenses and mitigation. If you stand accused, contact me today. 410 591 2935.

Baltimore Criminal defense lawyers like Attorney Eric T. Kirk are likely well versed on the Maryland theft statue, an omnibus or catchall provision, covering all manner of nefarious conduct, previously punished as specific common law crimes. The modern theft statute punishes the crimes formerly known as larceny, embezzlement, shop lifting and receiving stolen property.

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Theft in Baltimore, MD: The current law.

“Theft constitutes a single crime embracing the former separate crimes of larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting and receiving stolen property.” Ogburn v. State 526 A.2d 614. “In Maryland, the common law crime of larceny was traditionally defined as “the intentional taking, without legal warrant, of the personal property of another with the unlawful intention to deprive the owner of such property.”  (citation and internal quotation marks omitted). In Maryland the General Assembly  consolidated a number of theft-related offenses … into a single newly created statutory offense known as theft. The General Assembly expanded the common law definition of “property” to include, among other things, “real estate” and “things growing on or affixed to, or found on land, or part of or affixed to any building [.] That definition remains in force today.” Id “The theft statute distinguishes between “personal property” and “property”. The modern consolidated theft statute does not distinguish, however, between “movable” and “immovable” property. In addition, the modern consolidated theft statute does not require asportation of property. Hobby v. State, 436 Md. 526. 

Theft v. Baltimore Larceny: The Key Differences

Theft under Maryland Code § 7-104 significantly differs from common law larceny by its broader scope and modernized consolidation of various property crimes. Common law larceny traditionally required the unlawful taking and carrying away of personal property belonging to another, with the intent to permanently deprive the owner of it. This definition was narrow, as it excluded acts like embezzlement, obtaining property through false pretenses, and theft of intangible items. In contrast, Maryland’s theft statute under § 7-104 integrates and expands the definition of theft to encompass multiple criminal behaviors. This includes larceny, embezzlement, obtaining property by deception, possession of stolen property, and unauthorized control over another’s property. The statute eliminates the strict common law requirement of asportation (physical carrying away). It also includes theft of services and intangible assets, reflecting the complexities of modern commerce. Another key difference is that Maryland law allows aggregation of theft amounts over a specified period to determine the severity of the offense, potentially elevating misdemeanor theft to felony theft based on cumulative value. This is not a feature of common law larceny.

Does the Plain View Theory Allow The Baltimore Police To Take My Property?

It certainly can. The U.S. Supreme Court has repeatedly told us that any search conducted without the protections of a warrant [i.e. the finding of probable cause by a judicial officer] is presumptively unreasonable and therefore illegal. If property is taken during a warrantless search, the State must show that an exception to the warrant requirement applies. If an exception applies, like the Plain View Theory, it may Allow the Baltimore Police to take property. If the State cannot make such a demonstration, the prosecutor cannot use the property so taken in evidence against an accused in a criminal case. A court sitting in Baltimore, Maryland and hearing a criminal case certainly must follow the U.S Supreme Court’s decisions on plain view, although a Maryland court is free to determine that Maryland’s constitution provides greater protections.

Baltimore Police Do Not Need A Warrant If The Object Is In Plain View

The idea that objects in “plain view” are subject to immediate seizure is not really an exception to the warrant requirement. Rather, the constitutional underpinning is that one does not have a reasonable expectation of privacy in items that are already exposed to the public, and in any event, does not have a reasonable expectation of privacy in contraband. No searches are authorized by the plain view concept, only seizures. A competent Baltimore criminal defense lawyer must be familiar with 4th Amendment law and plain view concepts. If evidence is not seized in accord with a suspect’s constitutional rights, the State cannot use it against that defendant at their trial.

The Fourth Amendment is the great ally of a criminal defense lawyer and the absolute right of the defendant in any Baltimore criminal proceeding. The exceptions to the search and seizure rules are the best friend of the prosecutor. Baltimore police officers can take, and prosecutors can later use as evidence, items taken from a defendant or his or her vicinity in plain view when:

Does the Plain View Theory Allow The Baltimore Police To Take My Property?

  • The police officers have a valid, lawful reason to be in the position from which they make their observations. If a search is already underway, pursuant to warrant, or a recognized exception, the intrusion on an individual’s privacy has been authorized or is already constitutionally reasonable. view
  • The object seized is in plain view. An officer is not entitled to conduct a search, or do additional rummaging, to bring something into his or her plain view. It must be in that position without assistance.
  • The officer has probable cause to believe the item to be evidence of crime, or contraband. It may be immediately apparent that some items, perhaps CDS or paraphernalia, are contraband. However, it might not be immediately apparent that a closed laptop may have illegal images.

If The Object Is In Plain View, Baltimore Police May Seize It

It is not the seizure of the evidence that presents the problem to the typical Baltimore criminal defendant, but rather, the introduction of the evidence at trial. Perhaps the textbook example of plain view in operation is a situation in which Baltimore City Police officers have obtained a warrant to search a residence for guns. In the course of executing that warrant, they see a quantity of narcotics on the kitchen table. The officers are not required to obtain a separate warrant for the seizure of the narcotics. The contraband in plain view is subject to seizure.  The same rationale applies in a roadside encounter. If the stop itself is valid, and an officer outside a car observes an item of contraband inside the car, that is subject to seizure, and use at trial to convict. If, on the other hand, even though the evidence is in police custody, it was taken in violation of a recognized constitutional right – and the Fourth Amendment is the foremost- a defense lawyer may be able to keep it out of evidence. As Attorney Eric T. Kirk will tell you.

Plain View and the Baltimore Police Department
FULL TRANSCRIPT: Fourth amendment law provides that any search that is conducted without the benefit of a warrant is presumptively unconstitutional and therefore illegal – unless an exception to the warrant requirement applies. Now, evidence that is seized in violation of the constitution may not be used to trial to obtain the conviction of a defendant. A concept that is sometimes viewed as being an exception to the warrant requirement is that of plain view. This isn’t so much an exception to the warrant requirement as it is a doctrine that allows police officers to seize items of an incriminating nature that they perceive -in plain view. In order for this exception to apply, three requirements must be met. The seizing officer must be in a lawful position when he or she makes his or her observations of the contraband or item of evidence. The item of evidence or contraband’s nature must be immediately apparent as such. The courts often say that the officer must then there have probable cause to believe that the item is in fact contraband or the evidence of crime. Finally, the item must indeed be in plain view. No further searching is allowed under this legal principle.

The application of these principles to a given set of facts can be a complex and arduous task for any Baltimore criminal defense lawyer.   In the appropriate circumstances, a skilled defense lawyer may be able to keep the State from using such evidence in court.

I invite all potential clients to participate in a no-cost analysis and strategy conference. Contact me today to arrange a time to meet. 410 591 2835, or simply complete the form at the bottom of the page.

Do I Have To Give Baltimore Police Permission to Search My Car?

You can. You do not have to. If evidence is taken from your vehicle in violation of the 4th Amendment’s protections, the government cannot later use that evidence to obtain your conviction. The starting point in dealing with seized evidence is always the existence or absence of a warrant. Warrantless searches are unconstitutional and correspondingly illegal. If evidence is taken as the result of an unconstitutional search, the government must prove an exception to the warrant requirement applies, or it will be unable to use the evidence, no matter how incriminating.

A time-honored exception to the warrant requirement is when someone, with authority, gives permission to law enforcement to search their vehicle.

Do I Have To Give Baltimore Police Permission to Search? You can, but you cannot be coerced to do so. Of course, consent may be given to search other areas; one’s person, one’s home, or one’s business. In order for valid consent to be given, all of the surrounding circumstances must indicate the person giving consent did so voluntarily, and free of any intimidation or coercion. The individual giving consent to the search many also limit the permission, and law enforcement is bound by any limitation. The search must end if the consenter revokes his or her permission. The government must prove to the court any consent was voluntary. As Attorney Eric T. Kirk will tell you.

You do not have to allow law enforcement officers to search your vehicle.

Do I Have To Give The Police Permission to Search My Car?

Police cannot compel you to agree to a search. Their only option- unless some other exception applies- is to get a search warrant. That does not mean that police might not suggest otherwise, and knowingly or unknowingly exhibit such intimidation or coercion upon an individual that any permission given may be deemed involuntarily given.  Consent given involuntarily is of no use to the government. It is invalid, and any evidence taken as a result of coerced consent cannot later be used at trial. The voluntariness of an alleged consent is a complex, are entirely fact dependent issues, often litigated by experienced criminal defense attorneys.

I invite all potential clients to participate in a no-cost analysis and strategy conference. Contact me today to arrange a time to meet. 410 591 2835, or simply complete the form at the bottom of the page.

What Defenses Are There in a Baltimore DUI Or DWI Case?

The answer to the question “What Defenses Are There In a Baltimore DUI Or DWI Case?” is not one that can necessarily be answered in a vacuum, or by wrote. Each case is unique. Not everyone facing a Baltimore DUI or drunk driving charge has a defense. As a long-time criminal defense lawyer handling DUI, driving while intoxicated, impaired, under the influence- and plain old drunk-driving cases- I would suggest is surely makes sense to find out if you do.

Technical Defenses in a Baltimore DUI Case?

When facing a drunk driving charge, it is essential to understand that various technical defenses might be available to challenge the allegations. A veteran attorney like Eric T. Kirk, a Baltimore criminal defense lawyer, can examine every detail of your case to determine the most effective strategy. For instance, one potential defense could involve questioning whether the breathalyzer test was administered within the legally required two-hour timeframe. Additionally, the accuracy and proper testing and maintenance of the equipment used for testing can be significant factors in your defense. If the equipment was malfunctioning or not properly calibrated, it could render the results unreliable- and inadmissible.

Defenses in a Baltimore Drunk Driving Charge- Field Sobriety

Field sobriety tests also provide fertile ground for defense challenges. These tests must be conducted according to strict protocols. If the officer failed to administer these tests correctly or failed to account for external factors—such as uneven pavement, weather conditions, or a driver’s medical issues—it might weaken the prosecution’s case.

Constitutional Challenges to a Baltimore Driving Under the Influence prosecution

In my view, however, one of the most effective strategies in drunk driving cases often involves challenging the legitimacy of the traffic stop itself. The inception of many DUI charges lies in the officer’s initial decision to pull the driver over. If that stop was not supported by reasonable suspicion of criminal activity, all evidence gathered after the stop—such as breathalyzer results or field sobriety tests—may be inadmissible in court. Reasonable suspicion is a critical legal standard that ensures law enforcement cannot detain drivers arbitrarily. For example, an officer must observe a specific, articulable fact suggesting criminal behavior, such as swerving, running a red light, or excessive speeding.

READ THE LAW: TERRY V. OHIO

If it can be demonstrated that the officer lacked sufficient grounds for the stop, the defense could file a motion to suppress all evidence obtained afterward, which may result in the dismissal of the case due to the states inability to prove the case. Baltimore based DUI lawyer Eric T. Kirk understands the high stakes involved in drunk driving  cases and is dedicated to providing personalized legal strategies for every client. His knowledge of Maryland DUI laws, combined with his commitment to justice, ensures a quality defense.

Attorney Eric T. Kirk will tell you.

There are technical and legal defenses available.

 

TRANSCRIPT

Someone charged with drunk driving might be able to raise some technical defenses to the charge. For example, that the officer didn’t administer the breathalyzer test within two hours of being pulled over, or that the equipment wasn’t functioning properly, or perhaps that the officer didn’t administer the field sobriety tests appropriately. In my experience, often, the most effective method to challenge such a charge is to challenge the officer’s original reason for pulling the motorist over onto the side of the road. If that officer did not have a reasonable suspicion that criminal activity was afoot, everything that comes after the stop is inadmissible at trial.

It’s fairly common for me to take calls from the friends or family members of an incarcerated individual, asking for a ” quote ” or a price upon which I Attorney Eric T. Kirk can handle the case. While every criminal case is unique, I typically do my best – based upon the information provided – to give the caller and idea of what effective criminal representation may cost.

Perhaps most time-honored method to hire a criminal defense lawyer is at an agreed upon flat rate.

It comes as a surprise to no one that retaining counsel or ” lawyering up ” is not an inexpensive proposition. When one is considering retaining a lawyer in a civil action, the stakes are typically monetary in nature. Most civil claims involve an individual seeking redress for an alleged wrong: compensation for an injury, damages for breach of contract, and the like.

How Much Does It Cost To Hire A Maryland Criminal Defense Attorney?

Undoubtedly, many civil cases involve the most serious of allegations and the most grievous of injuries, but the ultimate outcome in a civil action is that someone recovers money – or they do not. For an individual facing criminal charges, the stakes are far different. An individual’s livelihood, reputation, future and indeed their very freedom may be on the line. In this context, it rarely, if ever makes sense to not hire counsel -no matter what the cost involved. Lawyers in Maryland typically handle criminal cases on one of two platforms. The first would be an hourly arrangement where the individual lawyer is compensated for their time actually spent on the case at an agreed upon rate. Perhaps the more common fee arrangement in a criminal case is that of a flat fee. Here, the lawyer and the client agree upon a specified amount for the entirety of a given case as a fee. Such arrangements might be limited so that for example, appeals are not included in the agreed-upon package of services. The availability of credit card payments or periodic payment plans give some individuals the flexibility required to retain counsel at the direst of times.

It is often impossible during a phone call – without the paperwork and charging documents connected with the case – to give a fully informed intelligent fee opinion. The preferred method is to review the statement of probable cause, indictment, or other charging documents in the case.

How Much Does It Cost To Hire A Maryland Criminal Defense Attorney?

This process enables the reviewing attorney to assess the strengths and weaknesses of the State’s case, the evidence they possess, the witnesses that will testify, and any legal issues, including legal defenses, that might be applicable to this singular situation. It should be noted that lawyers are prohibited from handling criminal cases on a contingency fee basis. These arrangements are commonly utilized in personal injury and workers compensation matters. The features of these arrangements are no ” upfront money ” from the client, the lawyer works for free, and   is only paid upon a successful resolution of the claim. These arrangements are not available in criminal matters.

As a Maryland criminal defense attorney, one thing I can say with absolute and unhesitating certainty is that any type a criminal charge– no matter how seemingly trivial or insignificant- is of the upmost gravity. I Attorney Eric T. Kirk have handled thousands of cases over the years, and seen many more. Many people accused of an offense have maintained some version of:

“it wasn’t like that” or

“it wasn’t that big of a deal” or

“there was a misunderstanding.”

One must never take a criminal charge case, or, perhaps more dangerously, assume that it will go away. Perhaps the accused’s assessment is correct, and there was a misunderstanding, or the circumstances were simply not that grave. However, this is far from the best defense strategy. There are never any guarantees in a criminal case, and the State of Maryland might have, and be able to prove, a much different version of events.

A Maryland criminal conviction is something that can keep you from:

What Should I Do If I Am Charged With A Maryland Burglary?

  • attending the school that you want
  • getting the job that you want
  •  entering the career field that you want, and potentially, even prevent you from
  • living in the place that you want.

The potential consequences are life long- and lasting. If you have been charged with any criminal offense it is imperative that you be proactive, get out in front of, and to the extent possible, manage the situation. A skilled Maryland criminal defense lawyer can help you with such efforts. I have found far too frequently in criminal prosecutions that if the defense sits back, and lets events happen, they will indeed happen the way the State wants them to- and there is no way to control them. Because burglary is a defense broken into many different degrees, the specific facts the State alleges are of incredible significance.

The State must prove each of the fact within the degree of burglary charged in order to obtain a conviction. When they cannot, they cannot obtain a conviction.

A skilled, professional Maryland criminal defense attorney will be able to hold the State to its burden of proof. The difference between the potential maximum penalties for burglary in the 4th degree burglary are 1st degree are dramatic. Burglary is a serious crime, that is taken as such by prosecutors and the judges that impose the sentences. One charged with burglary of any degree must take that charge with equal seriousness.

Quite obviously, any criminal conviction can have lifelong and lasting implications. It goes without  saying that possessing a criminal record can have a devastating impact on the educational or employment prospects of an individual.

A theft conviction is one of those blemishes on a record that can simply haunt an individual for the rest of their life.

As attorney Eric T. Kirk will tell you, under Maryland law, there is a hierarchy of criminal offenses starting with municipal or local offenses and potentially county level offenses. The next level, Maryland state level offenses, the most common form of criminal charge in Maryland, are graded from misdemeanors through felonies.

What Should I Do If I'm Arrested For Shoplifting In Maryland ?

Within those various gradations of offenses, there are some crimes that simply carry a stigma or a lasting label for those charged with and convicted of the offense, beyond that associated with merely “having a record”. Certainly, there are the most serious of all crimes involving  death or serious harm to another person- things like murder or manslaughter. However, within the category of crimes that are perhaps seen as less significant- those involving property rights or property laws- theft stands out as being a crime than has true lasting consequences, in my experience. Theft, by its very nature, incorporates concepts of dishonesty, and surreptitious, sneaking conduct or a concealment of wrong doing.

Once the judgment of conviction is entered, it is impossible to put back in the euphemistic bag. By way of example, a history of theft maybe a reason to have one’s testimony disbelieved in court. That may or may not be of particular import to one so convicted. Other consequences most certainly will be.

Upon becoming a convicted thief, the individual will find their application or consideration for position of trust declined.

Obviously, this type of record  can be impossible to explain away in a job interview. Some criminal offenses, even very serious ones like DUI, may be easier for a potential employer to overlook than a theft conviction.

What Should I Do If I'm Arrested For Shoplifting In Maryland ?

An experienced criminal defense attorney can assist you in laying the groundwork for a potential disposition short of, or in lieu of, a conviction. Early negotiations with the prosecution could potentially lead to an arrangement, satisfactory to the State of Maryland, that doesn’t result in a lasting criminal record. I’ve observed over the years that many judges view theft as a very serious offense, even when the amounts involved are relatively small. This is particularly true, in my opinion, in cases of alleged employee theft. A thoroughly researched and prepared defense strategy can convince a judge that a disposition of the case -short of conviction- is the most appropriate outcome.