"BOOK'ER DANNO!!!!"

As Howard County Lawyers, the attorneys at Shapiro & Mack handle countless cases where individuals are arrested for possession of narcotics and other illegal contraband.  Many found substances, which are unidentifiable to the naked eye, are field-tested by police using a KN chemical reagent test.  If the color coding indicateds an illegal substance than they are seized and the possessor is arrested.  However, it has recently been brought to our attention that possession of chocolate, yes CHOCOLATE, could get one arrested and cost them thousands in legal expenses.  So can basil, thyme, and oregano and a slew of other harmless and completely legal food, drug, and cosmetic items.  Some people have and will find this out the hard way! 

Ron Obadia and his partner Nadine Artemis, co-owners of Living Libations Inc., a Canadian organic products business, are not drug traffickers.  However, on August 22, 2008, they were handcuffed, searched, arrested, and interrogated for hours at the Toronto Airport after a brick-sized sample of their raw organic chocolate product field-tested positive for THC with the most widely used color reagent test.

A Royal Mounted Police officer accused the couple of attempting to smuggle hashish, which chocolate hardly resembles, into upstate New York.  They were locked in separate rooms and their one-year-old baby was taken away from them, which is standard procedure in a drug arrest. The Canadian police Obadia and Artemis they were facing life in prison and each was told the other had already confessed (also standard procedure).  Both adamantly denied their chocolate contained marijuana.

Eventually, they were released on bond and their child was released to them.  “We’re not the kind of people who have a criminal lawyer on speed-dial,” Artemis said.

Still eager to market their products in New York, the couple tried again three weeks later to enter the United States, this time by car near Buffalo.  Agents were waiting with a narcotics K-9, which alerted on a bottle of tea tree oil, an organic plant product used as a natural disinfectant.  Incredibly, the oil field tested positive, and knowing that the couple had already been branded as smugglers, ICE decided it was “hash oil.” Of the 40-odd other products in their sample cases, the chocolate again tested positive for THC.

Subsequent lab tests fund that none of the products seized contained illicit/illegal drugs.  Their two attempts to break into the U.S. marked have cost Obadia and Artemins $20,000.00 in legal fees.

WHAT ON EARTH IS GOING ON HERE?

To answer that all important question, Obadial and Artemis joined forensic science writer John Kelly, chemist Krishna Addanki of Claflin University and a representative of Dr. Bronner’s Magic Soap Company at a news conference held by the Marijuana Policy Project on March 3, 2009 at the National Press Club in Washington, D.C.  The event was the release of Kelly’s Report, False Positives Equal False Justice, with actual demonstrations of drug field testing on order to raise public awareness of the false-positive problem.  Kelly claims the widely marketed field test kits are worse than useless, and that even when used properly can cause great harm to innocent people.

According to Kelly’s report, thousands of common foods, over-the-counter drugs, cosmetics, and household products will falsely test positive in police drug field tests because the reagent tests themselves are not drug-specific.

The most common test for cannabis and THC, the Duquenoise-Levine Reagent test, reacts strongly to cocoa products, it ths case a Hershey's Dark Chocolate Kiss.

 For example, the 70-year-old Duquenois-Levine reagent test – the one that cause the improper arrest of Obadia and Arthemis – is used by  nearly every federal, state, and local police agency in the U.S. and the RCMP in Canada.  According to tests done by Addanki and his advisor Dr. Omar Bagasra, besides cocoa products, the D-L test also reacts positively to eucalyptus, patchouli, and cypress.  Another test, the ODV Inc. KN reagent test, not only reacts positively to cannabis products but also to  numerous aromatic herbs and essential oils, including thyme, oregano, anise, vanilla, peppermint, ginseng, and event a simple piece of an unbleached napkin (I saw this with my own eyes at the Bronner’s booth at the 2009 green festival in Washington D.C.).

“No one should be using these faulty tests that we’re experimenting with here today, and the companies producing them should probably be put out of business,” Kampia opined.  Until a confirmation test, which could take weeks, proves negative for drugs, “you’re guilty until proven innocent.”

 This problem with non-specific field tests has led to their being excluded as evidence at trial; however there have been very few successful challenges to their use in establishing probably cause to arrest and hold suspects pending trial.  More problematic is the backlog in forensic labs in general, which is the only way to get the real test result.  The common result of these bogus field tests is that citizens will be forced to pay large sums of cash bonds and attorney fees, or, even more unfortunately, suspects can be held in jail for months until lab results are returned.
 
Unfortunately, there is little that can be done about this mounting problem other than to arm yourself with the knowledge necessary to understand how an innocent situation can go awry.  If you find yourself victim of an improper search or seizure contact Shapiro & Mack immediately for our swift intervention.

By: David Zwanetz, Esq., Assicoate Attonrney @ Shapiro & Mack.  Dave Z., also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

Montgomery County Officer Dina Hoffman Investigated CLICK PICTURE TO SEE ABC NEWS REPORT NOW!

Did a Montgomery County police officer lie about a case to her superiors and in court? That’s under investigation.

CLICK HERE TO WATCH TO VIDEO!

COURTESY OF WJLA – ABC NEWS CHANNEL 7

Did a Montgomery County police officer lie about a case to her superiors and in court? That’s under investigation.

In sworn testimony, Montgomery County Officer Dina Hoffman swore that the defendant, 56-year-old George Zaliev, was behind the wheel drunk.

“I was disgusted,” said Paul Mack, Zaliev’s attorney. “She testified numerous times when she first arrived that he was in the driver’s seat with the engine running.”

But videotape from a nearby camera showed a different story. Zaliev was in the back seat lying down. You can see his feet hanging out the passenger-side rear door, when Officer Hoffman arrives. And that’s not all, said Mack.
“There was a least 10 or 20 instances where her testimony was not the same as the video,” he said.

That was a huge problem according to Mack, who said Officer Hoffman told arriving backup police officers and medical technicians that she’d ordered Zaliev to sit in the back seat, after removing him from the driver’s seat and taking the keys from the ignition.

“I lost a lot of sleep over this,” Mack said. “It was really difficult to comprehend why he got arrested when he didn’t do anything legally wrong.”

Mack worried that without the video, and only Hoffman’s testimony, his client could have been convicted.

“The judge clearly found that her testimony was not supported by the video,” Mack said.

The judge immediately found Zaliev not guilty.

Hoffman is the subject of a internal affairs probe into whether she perjured herself, a police spokesperson said. She remains on the job.

Any potential prosecution would be handled by Howard County State’s Attorneys.

COURTECY OF WTOP NEWS’ KATE RYAN (WTOP.COM) WATCH VIDEO NOW!!!!

POLICE OFFICER FACES PERJURY INVESTIGATION: VIDEOTAPE FROM CAMERA PROVES DUI ARREST INVALID

MAN WAS IN BACK SEAT OF PARKED CAR!

CLICK TO WATCH VIDEO: COURTESY WTOP NEWS

A Montgomery County Police officer faces a perjury investigation after she testified in April that she found a man arrested for driving under the influence behind the wheel of a parked car. A recording from a security camera showed he was in the back seat, lying down, with his feet out the open passenger side door when she approached him.

“We are aware of the allegation and will be conducting an investigation,” Montgomery County Police spokeswoman Lucille Baur said Wednesday.

The Montgomery County State’s Attorney’s Office referred the case to the Howard County State’s Attorney’s Office because county prosecutors might be questioned, said Seth Zucker, a spokesman for the Montgomery County State’s Attorney’s Office.

George Zaliev, 56, of Rockville, was arrested about 7:30 p.m. May 3, 2008, for DUI at the parking lot of Sarkissian Interiors at 8537 Atlas Drive in Gaithersburg. A preliminary breath test showed a blood alcohol content of 0.15, nearly twice the legal limit.

At his Montgomery County District Court trial, Officer II Dina Hoffman testified 11 times that she found Zaliev in the front driver’s seat. She said shook him awake and he was not cooperative in doing field sobriety tests.

Zaliev’s attorney, Paul E. Mack of Shapiro & Mack,  used a laptop computer to show a video from a security camera at Sarkissian that recorded the arrest.

The security tape, reviewed by The Gazette, shows Hoffman arrived and immediately walked up to Zaliev lying in the back seat.

A message left for Hoffman was not returned immediately. A three-year veteran, she continues to work while the allegation is investigated.

After Judge Dennis A. McHugh viewed the tape, he ruled the arrest lacked probable cause. The judge found Zaliev not guilty.

“I’ve done enough of these that I know without the video, it would have been my client’s word against the officer’s, and I probably wouldn’t have won,” Mack said in an interview.

Mack came forward after receiving a transcript of the trial.

By lying in the back seat of the car, Zaliev did nothing illegal and should not have been arrested, Mack said. Case law is clear that people in the back seat of a parked vehicle are not driving under the influence.

Zaliev, an upholsterer, was waiting in his friend’s car for his friend to get off work and drive him home, Mack said.

In her testimony at the April 2 trial, Hoffman claimed she arrived and approached Zaliev on the left side of the car where he sat behind the wheel asleep. She described shaking his shoulder to wake him.

“He was just sitting in the front seat, kind of sitting there sleeping,” Hoffman testified.

At several points Mack asked the officer if she was certain Zaliev was in the front and not the back.

“Do you recall him being in the back seat on the passenger side?” Mack asked on cross examination.

“No, not when I first got there, no,” Hoffman replied.

“Are you absolutely sure?” Mack asked again.

“Yes,” Hoffman testified. “I did have him sit there while I waited for another officer to come.”

After the recording was played in the courtroom, Hoffman was asked whether she was wrong about Zaliev’s position in the car.

“Yeah, I must have been,” Hoffman testified. “My apologies. It’s been over a year. I deal with a lot of these cases every day so my apologies.”

But Hoffman then said Zaliev “must’ve admitted to me that he was driving the vehicle at some point.”

On further questioning, Hoffman testified she had not told that to either the prosecutors or to Mack before.

“You were wrong about him giving you his license while he was in the front seat?” Mack asked.

“Yes,” she said. “He gave me his license, but I guess he was in the back seat.”

If Zaliev had been convicted, he would have faced a maximum sentence of $1,000 fine and a year in jail.

“If it was determined there’s perjury in this case, this is the kind of case that would undermine the authority of police and the perception of good officers out there doing their job,” said Christopher Heffernan, chairman of the Maryland State Bar Association’s litigation committee. “This would damage the police officers who are doing a good job out there to protect us. This is disturbing to everyone who looks up to the police and relies on them to protect us from the bad guys.”

Although allegations of perjury are not uncommon, it is very rare that such cases are ever brought to trial, and Heffernan said he could not remember any that involved police officers.

Mack said he sent a copy of the transcript to Montgomery County State’s Attorney John McCarthy and County Police Chief J. Thomas Manger.

Officer Investigated For Perjury After DUI Case Falls Apart:  Video Undermines Trial Testimony
 

By Dan Morse
Washington Post Staff Writer
Thursday, May 7, 2009

A Montgomery County police officer is being investigated for possible perjury after a drunken-driving trial last month in which video surveillance footage cast doubt on her testimony.

The Police Department’s criminal investigations division is handling the case with assistance from the internal affairs unit, a police spokeswoman said last night.

Officer Dina Hoffman, a three-year member of the force, testified repeatedly at trial that when she approached a stopped Lexus last year in Gaithersburg, she found George Zaliev behind the steering wheel, according to a transcript of the trial. Zaliev was charged with driving under the influence.

But at the trial, Zaliev’s attorney, Paul Mack of Shapiro & Mack, P.A., followed Hoffman’s initial testimony with video footage from a security camera at a nearby business. The footage shows that when Hoffman approached the Lexus, Zaliev was in the back seat, according to testimony.

“You never saw him in the front seat, correct?” Mack asked the officer.

“As the video shows, I guess I didn’t,” Hoffman said.

The officer also apologized. “It’s been over a year. I deal with a lot of these cases every day, so my apologies,” she said.

District Court Judge Dennis M. McHugh immediately ruled Zaliev not guilty. “You don’t have a case,” he told prosecutors.

Hoffman could not be reached for comment last night. She remains on active duty, according to police.

Mack, the defense attorney, said that after the trial, he notified Montgomery Police Chief J. Thomas Manger and State’s Attorney John McCarthy of what he considered serious problems with Hoffman’s testimony.

Any prosecution of the case would be handled by the Howard County state’s attorney’s office. A spokesman for the Montgomery state’s attorney said the matter was referred to Howard because Montgomery prosecutors could be questioned as fact witnesses.

big trouble in criminal defense land!

By: David Zwanetz, Esq.

The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. It is prophylactic rule formulated by the judiciary in order to protect individuals’ constitutional rights. However, in some circumstances at least, the exclusionary rule may also be considered to follow directly from constitutional language, such as the Fifth Amendment’s command that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law.”

The exclusionary rule is designed to provide a remedy response to prosecutors and police who illegally gather evidence, in violation of the Constitution, by conducting unreasonable searches and seizure or compelled self-incrimination.  Clearly, as an attorney focusing exclusively in the area of criminal defense, specifically Howard County criminal defense, the exclusionary rule is paramount importance.  Unfortunately, however, the exclusionary rule is in grave jeopardy.   

While the assault on the exclusionary rule is currently gaining full steam, it began in 1983 with a young lawyer in the Reagan White House who worked vigorously on a “the campaign to amend or abolish the exclusionary rule.”  The Reagan administration’s attacks on the exclusionary rule never gained much steam. The problem is, however, that the young passionate lawyer from the Regan Administration was John G. Roberts Jr., and he is now the chief justice of the United States Supreme Court.

January 14, 2009, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he proposed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the Chief Justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggests that the exclusionary rule may become a legal remnant in the very near future.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr., joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006.   Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.  With Alito’s replacement of O’Connor, there could be enough votes to eradicate the exclusionary rule altogether.  The four certain votes are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumni of the Reagan administration.

The fate of the rule will to turn on the views of Justice Anthony M. Kennedy.  It has been said that the liberal and conservative wings are eagerly courting Justice Kennedy’s vote Kennedy’s vote, could settle the issue once and for all.  Now with Souter’s retirement on the horizon, we are entering a whirlwind of unknown possibilities. 
Currently, the United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.  Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.  This kind of multi-tiered approach seems to be where the Court is headed.
The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the Herring case was an Alabama man, Bennie D. Herring, who was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant.  However, he had no warrant – the mistake was due to poor recordkeeping in a police database rather than a mistake by an officer on the scene.  Herring was searched incident to the improper arrest and gun and drugs were found on his person.  The theory remains that Herring should have never been arrested, thus never searched, and thus, the evidence must be excluded. However, the Supreme Court held that because the misconduct leading to Herring’s arrest was “attenuated from the arrest” the search was valid. 

What this means is that while the exclusionary rule is still alive its veil is smaller and its Berlin wall of protection for victims of unconstitutional police misconduct had begun to fall.  The Herring decision is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”  A broad reading of these comments by the lower courts could invariably be the death of the exclusionary rule as a practical matter.

The nomination of Barack Obama is a proverbial sigh of relief for the defenders of the exclusionary rule and most, if not all, criminal defense practitioners.  At least for the time being, it appears that the five votes required to disavow the exclusionary rule will not be obtained. While I don’t like the result, I am in awe of Justice Roberts for beginning a quest in 1983 with the Regan administration and fighting his way, with that issue in his briefcase, to the most powerful position in the United States legal community where he can now, very seriously, finish what he began. 

This article was written by David Z. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

ATTABOY!

By: David Zwanetz, Esq.

As a Howard County DUI practitioner I have handled countless cases where people have attempted to use their vehicle to sleep off a rough night of drinking and found themselves charged with DUI/DWI. It is of paramount importance to understand that “driving” for purposes of DUI law does not mean “driving” in the classic sense of the word. “Driving,” for legal purposes, is being in “actual physical control” of a vehicle. In this definition, the Maryland Legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters, and those people who represent an imminent threat to the public by reason of their control of the vehicle. The benchmark Maryland case of Atkinson v. State, 331 Md. 199 (1992), describes six factors for Judges/Juries to consider when determining of one is in “actual physical control” of a vehicle:

1. Whether or not the engine is running or the ignition is on (strongest factor)

2. Whether and in what position the person is found in the vehicle

3. Whether the person is awake or asleep

4. Where the vehicle’s ignition key is located

5. Where the vehicle’s headlights are on

6. Whether the vehicle is located in the roadway or is legally parked

Thus, it is clear from the factors above, that one can be charged and convicted of DUI/DWI in Maryland without ever actually moving his or her vehicle. Getting into a cars driver’s seat, turning on the engine for heat, and falling asleep while drunk technically, legally, exposes one to a charge of driving under the influence or driving while impaired by alcohol. The only sure way to avoid a DUI charge in Maryland, or any state, is to never get behind the wheel of your vehicle, even if you don’t plan to move it, with any alcohol in your system. And if you plan to sleep things off in you’re vehicle, you should make sure your car is off and you’re somewhere other than the drivers seat.

This article was written by David Z. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.