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Bill seeks to close search ‘loopholes’ for police

Prosecutors claim change to exclusionary rule goes against Fourth Amendment law

ANNAPOLIS – Prosecutors heavily criticized Thursday a bill they said would “attempt to change hundreds of years of Supreme Court case law” but advocates said ensures police would not be rewarded for conducting searches without probable cause.

Del. Curt Anderson, D-Baltimore City, said House Bill 615 would strengthen Maryland’s exclusionary rule for evidence in criminal trials to remove good faith and other exceptions recognized by courts.

Anderson told the House Judiciary Committee the usual remedy for a defendant who claims evidence was seized in violation of the state and federal constitutions is the exclusion of that evidence from their trial. The bill would enhance the rule, which is not codified in Maryland.

The bill prohibits introduction of evidence obtained in good faith, through inevitable discovery or as a result of the defendant’s lack of a reasonable expectation of privacy, among other circumstances.

Baltimore County State’s Attorney Scott Shellenberger objected to the bill, saying he had a hard time wrapping his head around it because it meant going against “bedrock principles” of Fourth Amendment law.

“We’re going to take over 300 years of constitutional law handed down by the Supreme Court… and suddenly say we’re smarter than everybody?” he asked.

Edie Cimino, a deputy district public defender, said tightening the exclusionary rule sends a message to law enforcement that unconstitutional searches and seizures will not be tolerated.

Cimino said she is “painfully aware” of the negative effects exceptions to the exclusionary rule have on citizens who have their homes and belongings searched based on defective warrants, only to have those searches upheld by a judge.

With a good faith exception, a court finds a law enforcement officer acted unconstitutionally but still allows the evidence in for that case only.

Shellenberger said when that happens, he considers all of the law enforcement agencies in that court’s jurisdiction to be on notice that they are no longer acting in good faith by engaging in that practice.

Del. David Moon, D-Montgomery, asked Shellenberger about a recent federal court ruling that warrants are required to search cellphones.

“I believe that once the [4th U.S. Circuit Court of Appeals] has said that I need a search warrant for something, I believe that every officer in that area is on notice,” Shellenberger said.

Committee Chair Joseph F. Vallario Jr. called the exclusionary rule exceptions “loopholes” that help prosecutors and questioned why they should be allowed to remain in place.

Shellenberger said the Constitution protects the defendant and cited a recent case in Baltimore County where a confession was suppressed in a trial because the judge found law enforcement made improper inducements to obtain it.

“I believe in the Constitution, and when [the court] told me they threw it out, I said OK,” he said.

The bill has not been cross-filed in the Senate.