U.S. Court of Appeals for the 4^th Circuit

Consumer Protection; class action waiver: The district court erred when it held that Marriott engaged in conduct inconsistent with the class-action bar when it agreed to MDL proceedings in Maryland, and thus implicitly waived reliance on that provision. Maldini v. Marriott International Inc., Case Nos. 24-1064, 24-1065 (filed June 3, 2025).

Criminal; jury instructions: Where three members of MS-13 who were convicted for their roles in a serious of violent killings challenged their convictions on multiple grounds, including that two oral misstatements by the trial judge during jury instructions impermissibly broadened the bases of conviction and therefore gave rise to a fatal variance, their arguments were rejected. United States v. Contreras-Avalos, Case Nos. 24-1064, 24-1065 (filed June 3, 2025).

Immigration; jurisdiction: Where a couple challenged the United States Citizenship & Immigration Services’ adjudication hold policy, the Fourth Circuit joined every other circuit to consider the issue in holding that 8 U.S.C. § 1252(a)(2)(B)(ii) deprives federal courts of jurisdiction over such challenges. Kale v. Alfonso-Royals, Case No. 23-1799 (filed June 3, 2025). 

Jurisdiction; Rooker-Feldman doctrine: Where a woman filed suit asking the federal court to enjoin an order entered by a state court judge as unconstitutional, her claims were barred by the Rooker-Feldman doctrine. T.M. v. University of Maryland Medical System Corporation, Case No. 24-1707 (filed June 4, 2025).

Labor; NLRB: Where a business owner’s response to a union flyer stated “As a matter of fact if it wasn’t for [union] trying to steal money out of your paychecks you would already have your raises,” the National Labor Relations Board did not err in finding it was a coercive threat of reprisal. He improperly implied that union efforts had previously impacted wages and that future organizing activity would have the same negative effect. Garten Trucking LC v. National Labor Relations Board, Case Nos. 24-1571, 24-1614 (filed June 2, 2025).

Search and Seizure; Good faith: Where a warrant allowed seizure of a cell phone but did not authorize its search, but investigators nevertheless searched the phone and found evidence of child sexual abuse material, a divided court affirmed suppression of the evidence. The government cannot fall back on the good faith exception when it unreasonably exceeds the scope of an unambiguous warrant. United States v. Ray, Case No. 24-4024 (filed June 3, 2025).

Maryland Appellate Court

Constitutional; right to vote: Where the circuit court applied the incorrect standard in denying a mentally-challenged man’s request that he be allowed to vote with his parents’ assistance, the case was remanded for the circuit court to apply the correct standard. In the Matter of William Pughsley, No. 1489, Sept. Term, 2023 (filed June 2, 2025).

Criminal; sexual orientation evidence: Where the circuit court allowed the state to introduce evidence about the sexual orientation of a man charged with sexual abuse of a child, it erred. Where the victim is pre-adolescent and there is no evidence linking sexual orientation with child abuse, evidence of the defendant’s sexual orientation is irrelevant. Vangorder v. State, No. 172, Sept. Term, 2024 (filed June 2, 2025). 

Domestic Relations; CPO modification: Where the trial court recently modified a constituted pension order entered in 1999, it erred. The trial court was procedurally barred from modifying the order because it is a final judgment, and husband’s delayed attempt at modification is prohibited by Maryland Rule 2-535(a)-(b). Smith v. Smith, No. 1263, Sept. Term, 2023 (filed June 6, 2025).

Sanctions; state agency: Where trial courts sanctioned the Maryland Department of Health pursuant to Md. Code Ann., Crim. Proc. § 3-106(c)(4) for its repeated and continued failure to comply with court orders and a statutory mandate involving the timely commitment of incompetent individuals, those sanctions were largely affirmed. Maryland Department of Health v. Boulden, Nos. 534, 581, 582, 641, 643, 996 and 1291, Sept. Term, 2024 (filed June 3, 2025).

Search and Seizure; search: Although the Maryland General Assembly enacted a new section of criminal law, effective July 1, 2023, that officer may not search a motor vehicle based solely on “the odor of burnt or unburnt cannabis,” because the search in this case occurred before July 1, 2023, the new law did not apply to this defendant. Cutchember v. State, No. 1474, Sept. Term, 2023 (filed June 2, 2025).

U.S. Court of Appeals for the 4th Circuit

Consumer Protection

class action waiver

BOTTOM LINE: The district court erred when it held that Marriott engaged in conduct inconsistent with the class-action bar when it agreed to MDL proceedings in Maryland, and thus implicitly waived reliance on that provision.

CASE: Maldini v. Marriott International Inc., Case Nos. 24-1064, 24-1065 (filed June 3, 2025) (Judges Niemeyer, King, HARRIS).

FACTS: This is the second time this court has reviewed the certification of plaintiff classes against Marriott International Inc., and Accenture LLP after hackers breached one of Marriott’s guest databases. This court previously held that the district court erred by certifying damages classes against Marriott without first addressing the effect of a contractual class-action waiver signed by all putative class members. But the court noted that the district court had questioned whether Marriott timely raised its class-action waiver defense, and left that issue to the district court on remand.

On remand, the district court again declined to enforce the class-action waiver. It did not address the forfeiture issue raised in the prior opinion. Instead, it held that by agreeing to multidistrict litigation in Maryland, Marriott engaged in conduct inconsistent with the class-action bar and thus implicitly waived reliance on that provision. And it suggested that the class-action waiver would in any event be unenforceable because it conflicted with Rule 23 of the Federal Rules of Civil Procedure.

LAW: This court first finds that Marriott did not give up its right to invoke the class-action waiver in the SPG Contract by failing to properly raise and preserve that defense. Marriott invoked its class-waiver defense in its answer, and again in opposing class certification – precisely the stage at which a district court should consider the effect of a class-action waiver. Marriott also raised a class-waiver defense in its motion to dismiss, and during discovery it identified the SPG Contract’s class waiver, specifically, as the basis of that defense.

The district court instead held that Marriott’s participation in consolidated MDL proceedings was the very “antithesis” of its contractual agreement to handle cases “individually without any class action,” and thus precluded Marriott from relying on the class-action provision. This court disagrees. This provision is what the parties and courts have understood it to be all along: a class-action waiver. Even if the provision could be read as an overarching commitment to litigate only “individually,” participation in an MDL would not be incompatible with that commitment.

Next, because the same section of the SPG Contract that bars class litigation also provides for venue in New York and the application of New York law, the district court reasoned that Marriott, by agreeing to MDL proceedings in Maryland and to bellwether cases litigated under various state laws, waived reliance not only on the venue and choice-of-law provisions but also on the class-action provision.

But that reading is foreclosed by the plain terms of the SPG Contract, which includes a severability clause. So even if Marriott waived the venue or choice-of-law provisions, the “remaining” class-action waiver would “remain in force,” as the parties agreed. Nor does it seem to be the case, as the district court assumed, that Marriott did waive the venue and choice-of-law provisions through inconsistent conduct.

Finally agreeing to an MDL, agreeing to an MDL in Maryland and identifying bellwether claims to be tested under various states’ laws occurred before the plaintiffs moved in 2021 for class certification and identified the SPG Contract as the basis for their breach of contract claims. Neither the district court nor the plaintiffs has explained how Marriott could intentionally abandon a known right under the SPG Contract through actions taken before it knew the SPG Contract was at issue.

The district court relied on a magistrate judge’s 2009 decision for the proposition that Rule 23 precludes contractual waivers of class-wide litigation. But more recent law is to the contrary. The district court also hinted, almost as an aside, that the class-action waiver is invalid as unconscionable. If that is what the court intended, it is mistaken.

The class-action waiver here applies to “[a]ny disputes arising out of or related to the SPG Program or [the SPG Contract].” The plaintiffs do not dispute that their contract claims are covered by this provision. But they argued on remand that their consumer protection and negligence claims fall outside the provision’s scope. Given its broad “arising out of or related to” language, the class waiver here applies to the plaintiffs’ consumer-protection and negligence claims as well as their contract claims.

Accordingly, the district court’s recertification of the damages classes against Marriott are reversed. And because it remains the case that the issue classes against Accenture have been justified only in combination with the Marriott damages classes, the recertification of the Accenture classes are reversed also.

Reversed.

Criminal

jury instructions

BOTTOM LINE: Where three members of MS-13 who were convicted for their roles in a serious of violent killings challenged their convictions on multiple grounds, including that two oral misstatements by the trial judge during jury instructions impermissibly broadened the bases of conviction and therefore gave rise to a fatal variance, their arguments were rejected.

CASE: United States v. Contreras-Avalos, Case Nos. 24-1064, 24-1065 (filed June 3, 2025) (Judges WIKINSON, Niemeyer, Wynn).

FACTS: After a series of violent killings, Brayan Alexander Contreras-Avalos, Jairo Arnaldo Jacome and Luis Arnoldo Flores-Reyes were charged with various crimes relating to their involvement in the transnational gang MS-13. At the close of a two-week trial, the jury returned a guilty verdict on all counts. The district court denied appellants’ motions for acquittal or a new trial and sentenced each to life in prison.

LAW: Jacome and Flores-Reyes argue that the district judge made two errors in her oral instructions to the jury which require their convictions under Counts Five and Seven be vacated. They point to two erroneous references to “conspiracy” that the district judge made in her oral instructions to the jury on these counts, which alleged substantive crimes, not conspiracy crimes. Although the judge corrected the written instructions to remove those references to conspiracy before they went to the jury, appellants contend that the two oral misstatements impermissibly broadened the bases of conviction to include conspiracy and therefore gave rise to a fatal variance.

To demonstrate plain error, appellants “must establish that: (1) an error occurred; (2) the error was plain; and (3) the error affected [their] substantial rights.” The court need not decide whether the district court’s decision not to reinstruct the jury orally as to the two misstatements was an error that created a fatal variance because appellants are wholly unsuccessful on prong three of plain error review. They cannot show that any error was prejudicial and affected their substantial rights.

This court will not reverse the entire effort of the district court and jury over two lines of text in the oral jury charge that were corrected in the written instructions. Appellants got a lengthy jury trial with regard to the murders and other serious crimes. A jury of their peers rendered a verdict of guilty on all counts that was supported by overwhelming evidence. There is just no way, under the totality of the circumstances, that these two stray misstatements had an impact on the outcome of this trial.

Jacome argues that the district court erred in denying his motion for acquittal because no reasonable juror could find that he (1) committed or aided and abetted the murder of Duarte-Lopez or (2) did so to maintain or increase his position in MS-13. Neither argument is persuasive.

Like Jacome, Flores-Reyes argues that the district court erred in denying his motion for acquittal on his conviction under Count Seven for violent crime in aid of racketeering murder. He contests only the crime-of-violence element, contending that no reasonable juror could find that he committed or aided and abetted the murder of Raymond Wood. Again, the court disagrees.

Finally, Contreras-Avalos claims that the district court erred in denying his motions for acquittal and a new trial on his convictions under Counts One and Eight for Racketeer Influenced and Corrupt Organizations Act conspiracy and conspiracy to distribute drugs. Appellant offers a single argument for both assertions of error: that the government failed to offer “any physical or forensic evidence” against him and based its entire case on cooperator testimony.

It is not unusual, of course, for prosecutors to call criminally compromised individuals to the stand. Contreras-Avalos does not contend that the trial court denied him a proper opportunity to impeach the credibility of adverse witnesses. Both witness credibility and the weighing of conflicting evidence are quintessential matters for the finder of fact, not the reviewing court, to decide. There was no abuse of discretion here.

Affirmed.

Immigration

jurisdiction

BOTTOM LINE: Where a couple challenged the United States Citizenship & Immigration Services’ adjudication hold policy, the Fourth Circuit joined every other circuit to consider the issue in holding that 8 U.S.C. § 1252(a)(2)(B)(ii) deprives federal courts of jurisdiction over such challenges.

CASE: Kale v. Alfonso-Royals, Case No. 23-1799 (filed June 3, 2025) (Judges King, GREGORY, Heytens).

FACTS: Lalakshi Kale and his wife, Gurusaday Dey, challenge the United States Citizenship & Immigration Services, or USCIS, policies for managing visa supply and demand as violative of the Administrative Procedure Act. Specifically, they allege that USCIS’s decision to hold their adjustment of status applications in abeyance until a visa number comes available constitutes unlawful withholding and unreasonable delay, and they seek mandamus ordering the agency to adjudicate their visa application at once.

This case concerns a question confronted by several other sister circuits: Whether 8 U.S.C. § 1252(a)(2)(B)(ii) deprives federal courts of jurisdiction over challenges to USCIS’s adjudication hold policy regarding final action date retrogression for adjustment of status applications. The district court held that it does, and dismissed the case.

LAW: Section 1252(a)(2)(B)(ii) deprives courts of “jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified . . . to be in the discretion of the Attorney General or the Secretary of Homeland Security.”

In Shaiban v. Jaddou, 97 F.4th 263 (4th Cir. 2024), this court held was faced with a denial of adjustment of status for having engaged in terrorist activity under 8 U.S.C. § 1159(b), which dictates that “the Secretary of Homeland Security or the Attorney General may adjust the status of a foreign national granted asylum in the Secretary’s or the Attorney General’s discretion.” This court held that § 1252(a)(2)(B)(ii) precluded review of the decision because Congress placed the adjustment of status within Attorney General’s discretion.

This jurisdiction-stripping statute, however, requires more than just the grant of discretion to be triggered. The challenge must also be to a “decision or action.” Agency inaction is not to be conflated with action. Here, the court ultimately finds that USCIS’s adjudication hold policy is a (1) “decision or action” that is (2) “committed to the discretion of the Attorney General of Secretary of Homeland Security.”

USCIS devised, within its explicit statutory discretion and in compliance with several potentially conflicting statutes, a system such that when a visa number is not immediately available to an applicant due to retrogression, it would place the application in an adjudication hold. USCIS made an additional decision to apply this policy to appellants’ applications until a visa number becomes available. And this decision was but one choice available to USCIS, with the other option being to deny their applications outright and require them to refile once their priority dates became current.

The statutory authority conferred upon the agency is also significant. USCIS is not only granted discretion with respect to the ultimate decision on whether to grant adjustment of status. USCIS also has the discretion to “prescribe” the regulations that guide its exercise of the discretionary authority. Thus, the establishment of regulations and procedures for managing several competing statutory requirements––including the establishment of the adjudication hold policy––is plainly within the statutory grant of discretion. The court sees no reason to treat the several explicit and discretionary steps taken by USCIS as inaction.

The Third, Fifth, Eighth and Eleventh Circuits have all found that “[t]he text of § 1252(a)(2)(B)(ii) and § 1255(a)” provide the requisite “evidence that Congress intended to preclude judicial review of the Attorney General’s discretionary decisions about the status adjustment process under § 1255(a), like the Adjudication Hold Policy.” Like the other circuits, the court agrees that 8 U.S.C. § 1255 confers discretionary authority on USCIS to establish procedures for adjudicating adjustment of status applications, which constitutes an agency “decision” or “action.” As a result, a challenge to the procedures chosen and implemented by USCIS “cannot be reviewed by federal courts.”

Affirmed.

Jurisdiction

Rooker-Feldman doctrine

BOTTOM LINE: Where a woman filed suit asking the federal court to enjoin an order entered by a state court judge as unconstitutional, her claims were barred by the Rooker-Feldman doctrine.

CASE: T.M. v. University of Maryland Medical System Corporation, Case No. 24-1707 (filed June 4, 2025) (Judges Wynn, Richardson, HEYTENS).

FACTS: T.M. has a medical condition that “causes changes in [her] mental status upon ingesting any amount of gluten” and can result in “episodes of psychosis.”  After one such episode, T.M.’s treating psychiatrist sought permission to forcibly inject T.M. with antipsychotic medication, which required approval from a clinical review panel.

The panel approved the psychiatrist’s request, and a Maryland administrative law judge affirmed the panel’s decision after a hearing. Seeking to avoid forcible injection and secure her release from involuntary commitment, T.M. filed several lawsuits, including a habeas action filed in Maryland state court.

While that habeas action was ongoing, T.M. and the medical center reached an oral agreement to release T.M. so long as she abided by certain conditions. That oral agreement was reflected in a written document that the judge in the habeas action signed and entered as a consent order. Ten days later, T.M. and her parents filed this lawsuit in federal court claiming “that the ‘Consent Order’ ” is “unconstitutional, unenforceable, and void ab initio.”

The district court determined that T.M.’s claims were barred by the Rooker-Feldman doctrine and that it thus lacked subject matter jurisdiction over them. The court concluded the parents’ claims failed on the merits because “they have failed to state plausible claims for relief in their Complaint.”

LAW: “The Rooker-Feldman doctrine . . . is confined to cases” possessing four characteristics: those “[1] brought by state-court losers [2] complaining of injuries caused by state-court judgments [3] rendered before the district court proceedings commenced and [4] inviting district court review and rejection of those judgments.” T.M. insists that conditions one, two and four are absent here. The court disagrees.

First, Maryland law would have permitted T.M. to ask the state habeas court to set aside the consent order, and to appeal that order if the state habeas court declined to do so. If those efforts proved unsuccessful, T.M. could seek review from the Supreme Court. What T.M. may not do, however, is “avoid Rooker-Feldman simply by bypassing [the] state court[s].”

Regarding the second and fourth requirements, T.M. is “complaining of injuries caused by” a state court judgment and seeks “district court review and rejection of” that judgment. The complaint asserts that “[t]he Consent Order”—not the defendants’ conduct or even the underlying oral agreement—“imposes clearly unconstitutional limits on T.M.’s ability to control her own healthcare forever.”

And although it may sometimes be difficult to determine whether a plaintiff is asking a district court to “review and reject[ ]” a state court judgment, “there’s no complexity when the litigant directly asks a federal district court to declare a state-court order to be unconstitutional and enjoin its enforcement.” That is what T.M. has done here by asking the district court to “[d]eclare” that the consent order “violates the Maryland Declaration of Rights and the Due Process clause of the Fourteenth Amendment” and “[g]rant preliminary and permanent injunctive relief preventing [its] enforcement.”

T.M. insists that this suit is really about injuries inflicted by the medical center rather than the consent order. That claim cannot be squared with the language of T.M.’s complaint.

T.M. insists that Rooker-Feldman does not apply because the doctrine is limited to suits where a federal court is asked to “exercise appellate jurisdiction over a final judgment from the highest court of a State in which the decision could be had” and there is no such judgment here. Having carefully considered the matter, the court agrees with other circuits that Rooker-Feldman is not limited to situations when a federal court plaintiff no longer has any recourse within the state system.

T.M.’s final argument is that the portion of the complaint asserting she agreed to the consent order under duress should survive dismissal because that claim challenges “the process by which the state court decision[] resulted” rather than “the state court decision[]” itself. Here too, the court is unpersuaded. That said, because the Rooker-Feldman doctrine is one “of subject-matter jurisdiction,” the court vacates in part and remands with instructions to modify the judgment to state that T.M.’s claims are dismissed without prejudice.

The parents argue that the consent order violates their First Amendment rights by compelling their speech. But their complaint never asserts that the consent order violates the parents’ First Amendment rights. Thus, the district court correctly concluded the parents failed to state a claim on which relief can be granted.

So ordered.

Labor

NLRB

BOTTOM LINE: Where a business owner’s response to a union flyer stated “As a matter of fact if it wasn’t for [union] trying to steal money out of your paychecks you would already have your raises,” the National Labor Relations Board did not err in finding it was a coercive threat of reprisal. He improperly implied that union efforts had previously impacted wages and that future organizing activity would have the same negative effect.

CASE: Garten Trucking LC v. National Labor Relations Board, Case Nos. 24-1571, 24-1614 (filed June 2, 2025) (Judges WILKINSON, Gregory, Quattlebaum).

FACTS: Robert “Dizzy” Garten challenges a decision made by the National Labor Relations Board, or NLRB, that his rough response to a union flyer constituted an unfair labor practice. The NLRB found that because the petitioner’s message purported to tie wage increases to employees’ union activities, it was a coercive threat of reprisal. As such, the speech violated the National Labor Relations Act, or NLRA, and was not protected under either the NLRA or the First Amendment.

LAW: This case implicates the relationship between two subsections of the NLRA: § 8(a)(1) and § 8(c). Section 8(a)(1) broadly prohibits employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [§ 7 of the NLRA].” Section 8(c) clarifies, however, that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.”

In order to uphold the NLRB’s determination, the court must find that some part of Garten’s message interfered with employees’ exercise of their labor rights in violation of § 8(a)(1). In turn, under § 8(c), any part of the message is only admissible as evidence of an unfair labor practice if it constitutes a “threat of reprisal or force or promise of benefit.” These two sections point effectively toward the same question: was the message objectively coercive?

Garten posted a long response to the Union’s flyer. Much of Garten’s response was coarse; little of it was decorous. But its brusque and combative tone was still within the bounds of acceptability. To conclude otherwise would ignore § 8(c) and make speech during a union organizing campaign a one-sided affair. Garten is entitled to share his concerns regarding the costs of unionization. This is a form of “legitimate propaganda.” He is also permitted to respond to the criticism that the Union levied against him.

The majority of Garten’s message served lawful purposes; he rebutted the facts of AWPPW involvement in determining raises and evinced his belief that employees are better off without the Union. This is a valid position to take, one which employees are entitled to hear, and one which gives them worthwhile and useful information on which to base their votes.

The last sentence of Garten’s post, however, tells a different story: “As a matter of fact if it wasn’t for [AWPPW] trying to steal money out of your paychecks you would already have your raises.” This statement could be interpreted in one of two ways: (1) as a general matter, employees would fare better if they were not unionized and (2) as a real threat not to grant future wages if there was a union presence. Thus, this court’s analysis focuses on whether the statement, under the “totality of the circumstances,” could objectively be perceived as a threat.

Under this standard, it becomes clear that the NLRB had substantial evidence to conclude that Garten crossed the line. While he contends that the sentence can only logically be interpreted as hyperbole or opinion because he had already doled out raises, Garten’s prior actions are inapposite. Wage increases were not on a regular schedule and were not then subject to collective bargaining. As the company’s owner, Garten’s discretion was substantial, if not plenary; he could easily withhold future wages on a whim, and his employees would readily know this.

In textually linking employees’ raises to the activities of the Union, Garten improperly implied that union efforts had previously impacted wages and that future organizing activity would have the same negative effect. This was not a general statement that unionizing is bad for business. Rather, the NLRB presented substantial evidence that this is the paradigmatic quid pro quo that neither the NLRA nor traditional campaign-speech doctrine protects: the evidence showed that Garten’s speech attempted to secure a particular course of employee action not by mere persuasion, but by intimidation and coercion.

Petition denied and cross-petition for enforcement granted.

Search and Seizure

Good faith

BOTTOM LINE: Where a warrant allowed seizure of a cell phone but did not authorize its search, but investigators nevertheless searched the phone and found evidence of child sexual abuse material, a divided court affirmed suppression of the evidence. The government cannot fall back on the good faith exception when it unreasonably exceeds the scope of an unambiguous warrant.

CASE: United States v. Ray, Case No. 24-4024 (filed June 3, 2025) (Judges Gregory. THACKER) (Judge RUSHING dissents).

FACTS: In October 2022, investigators with the Naval Criminal Investigation Service, or NCIS, obtained a military warrant to seize the cell phone of Joshua Lee Ray — but not to search it. In contravention of the express terms of that warrant, the investigators searched appellee’s phone and found evidence of child sexual abuse material. Appellee moved to suppress the evidence, arguing that the search violated the Fourth Amendment because the warrant did not authorize the NCIS to search his phone. The district court granted appellee’s motion.

LAW: The government argues the good faith exception announced in United States v. Leon, 468 U.S. 897 (1984), justified the NCIS’s search of appellee’s cell phone. To access the good faith exception, the government argues for the first time on appeal that the command authorization for search and seizure, or CASS, the military equivalent of a search warrant, was deficient for a lack of particularity.

The CASS at issue in this case suffers no particularity error, plain or otherwise. It simply did not authorize the NCIS to search appellee’s phone. That conclusion, taken from a plain reading of the document, is underscored by the factual record in this appeal, to which the government has conceded.

Namely, that Commander Washburn did not verbally authorize the special agent (Smith) to search appellee’s cell phone, the CASS did not incorporate Smith’s affidavit and the CASS contained no limitation on the NCIS’s search of appellee’s phone. Indeed, it could not contain any such limitation because, to repeat, the CASS did not authorize the NCIS to search appellee’s cell phone.

Per the government’s theory, any warrant that does not authorize a search of a particular object or person is thereby deficient for lack of particularity. To accept that premise, and use it as a stepping stone to the Leon good faith exception, would facilitate an unfettered and unlimited “exploratory rummaging” at odds with the Fourth Amendment protections set down by our Founders. That, the court will not do.

Beyond that, there is an inherent tension between the government’s particularity theory and its reliance upon the good faith exception. Assuming that the government has correctly alleged a Fourth Amendment particularity error in the CASS, then it has alleged the gravest one possible: a total omission of the item to be searched. This level of deficiency certainly renders a warrant “so facially deficient . . . that the executing officers [could not] reasonably presume it to be valid.”

To correctly frame the conduct at issue in this appeal, the NCIS clearly exceeded the scope of a valid warrant. Nonetheless, the government still argues that the good faith exception applies because, according to the government, Maryland v. Garrison, 480 U.S. 79 (1987) establishes that the good faith exception applies even in this context.

The court does not read Garrison as an extension of the Leon good faith exception to the execution of a valid warrant. Rather, Garrison establishes the more limited rule that there is no Fourth Amendment violation at all where officers reasonably interpret and reasonably execute a valid but ambiguous warrant. The valid warrant in Garrison turned out to be overbroad, but the officers’ obtainment and execution of that warrant was reasonable on the facts of that case. The good faith exception did not apply because there was no deficiency in the warrant itself. To read the Supreme Court’s analysis as an application of the good faith exception is to ignore its prerequisite determination that the warrant was valid.

The remaining decisions relied upon by the government show that it cannot fall back on the good faith exception when it unreasonably exceeds the scope of an unambiguous warrant. Here, the CASS was not ambiguous, nor was the NCIS’s execution of it reasonable. Accordingly, the good faith exception is not implicated.

Affirmed.

DISSENT: Under all the circumstances, it was objectively reasonable for Smith to believe that the search of Ray’s cell phone was lawful. Suppressing the evidence found on Ray’s phone is too “harsh [a] sanction” for Smith’s honest mistake. I would reverse the district court’s order suppressing the evidence.

Maryland Appellate Court

Constitutional

right to vote 

BOTTOM LINE: Where the circuit court applied the incorrect standard in denying a mentally-challenged man’s request that he be allowed to vote with his parents’ assistance, the case was remanded for the circuit court to apply the correct standard.

CASE: In the Matter of William Pughsley, No. 1489, Sept. Term, 2023 (filed June 2, 2025) (Arthur, BEACHLEY, Wright).

FACTS: In Maryland, “[a]n individual is not qualified to be a registered voter if the individual . . . is under guardianship for mental disability and a court of competent jurisdiction has specifically found by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process[.]”

In this appeal, the question is whether the circuit court erred or abused its discretion in denying requests by William Pughsley, who is under guardianship for mental disability, and his parents, who serve as his guardians, that William be afforded the right to vote with parents’ assistance, under a supported decision-making agreement, or SDMA, adopted in accordance with the Supported Decision-Making Act, codified at Md. Code, § 18-101 et seq. of the Estates & Trusts Article, or E&T.

LAW: Maryland’s disqualification statute applies when an otherwise qualified individual “is under guardianship for mental disability and a court . . . has specifically found by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process[.]”

To that requirement, the circuit court erroneously engrafted an additional test that required William to establish a “base understanding” of politics. The court repeatedly indicated that it was disqualifying William because he did not demonstrate a “base level understanding of the political process, of why he’s voting for a particular person[.]” That is not the correct legal standard for determining whether William is disqualified from participating in the voting process.

Compounding that error in applying the wrong legal standard, the court also erred or abused its discretion in denying William any “accommodations” to assist him in communicating his “desire to participate in the voting process[.]” For example, as William took the stand in the courtroom, in circumstances that commonly induce anxiety for any witness about to be questioned under oath, the court expressly prohibited parents from offering any assistance, including help that might have avoided the correction made by the judge when William raised the wrong hand to take his oath.

After counsel for parents elicited William’s affirmations that he wants to vote and talks about voting with parents, William became unresponsive to the judge’s compound questions about why he wanted to vote. Once counsel resumed questioning, William testified affirmatively when asked whether he cares about who is leading the country and, without prompting, identified specific candidates, his favorite former president and where the president lives. Based on this record, this court cannot say that the denial of any and all accommodations to assist William in understanding and responding to questions had no impact on his testimony or on the court’s assessment of it.

Nothing in the Election Law statute precludes parents from offering reasonable help to William as an accommodation contemplated by the disqualification statute. To the extent the court misunderstood the statute to preclude such assistance, the court erred as a matter of law. To the extent the court applied the statute in refusing such assistance, the court abused its discretion in these circumstances.

The circuit court interpreted parents’ petition requesting approval as supported decision-makers (and others as successor supporters) to be limited to voting rights. Based on the court’s conclusion that William is not qualified to vote, and its concern about issuing a “carte blanche” approval of parents as decision-making supporters, the court denied their request.

Although the court has found no case law interpreting or applying this new statute, its plain language and purpose contemplates judicial review of parents’ proposed SDMA because they are William’s guardians. To the extent the circuit court predicated its denial of parents’ petition on its determination that William is not qualified to participate in the voting process, its error in applying the wrong legal standard requires the court to vacate the order denying that petition.

Although not raised as grounds for denying parents’ petition, either below or in this court, the court notes there was no clear proffer regarding the SDMA sought by parents and William. Upon remand for reconsideration of the voting rights issue, any new request for approval of parents as supported decision-makers must comply with these statutory criteria.

Remanded to the Circuit Court for Prince George’s County.

Criminal

sexual orientation evidence 

BOTTOM LINE: Where the circuit court allowed the state to introduce evidence about the sexual orientation of a man charged with sexual abuse of a child, it erred. Where the victim is pre-adolescent and there is no evidence linking sexual orientation with child abuse, evidence of the defendant’s sexual orientation is irrelevant.

CASE: Vangorder v. State, No. 172, Sept. Term, 2024 (filed June 2, 2025) (Judges Shaw, Zic, Eyler, J.).

FACTS: After a jury trial Aaron Scott Vangorder was found guilty of sexual abuse of a minor by a household member, sexual abuse of a minor by a person having temporary supervision, two counts of third-degree sexual offense, two counts of fourth-degree sexual offense, three counts of second-degree assault and sexual solicitation of a minor.

LAW: Appellant moved in limine to preclude the state from adducing evidence of his sexual orientation on the ground that the probative value of such evidence was outweighed by its prejudicial nature. The state disagreed, arguing that the jury could use evidence of appellant’s sexual orientation to infer that he acted with the requisite intent and for the purpose of sexual gratification.

In considering the motion, the court took note of the fact that, during voir dire, the potential jurors were asked whether they had strong feelings regarding individuals who identified as bisexual or homosexual, and there was no response. The court also noted that appellant had explained any touching of W.W. as an accident. Ultimately, the court denied the motion in limine.

No Maryland case has addressed directly the issue of whether evidence of a defendant’s sexual orientation is relevant to his or her intent to sexually abuse a minor. Recently, however, every member of Maryland’s Supreme Court agreed to the proposition, albeit in dicta, that evidence of an adult defendant’s sexual orientation either is not relevant to a defendant’s sexual attraction to children or that the risk of unfairly prejudicing a defendant by reinforcing a stereotype of gay and lesbian people outweighs any potential probative value such evidence might have.

It is unclear, however, whether the Supreme Court viewed the sexual orientation evidence as irrelevant or inadmissible because the danger of unfair prejudice outweighed its probative value and, in either event, whether the court’s comments were limited to the nature of the facts and charges before it. As appellant points out, and the court recognizes, numerous courts in other jurisdictions have found that a defendant’s sexual orientation is irrelevant to one’s intent or motive to commit sexual child abuse and is unfairly prejudicial.

Here, the state’s purpose in offering evidence of appellant’s sexual orientation was to argue that the jury could use that evidence to infer that he acted with the requisite intent and for the purpose of sexual gratification. The court holds that evidence of sexual orientation is irrelevant in child sexual abuse cases when the child is pre-adolescent and when, as here, there is no evidence linking sexual orientation with child abuse. Reversal is required. The questions of relevance and questions of abuse of discretion with respect to the admission of evidence in other fact situations are left to another day.

Appellant next contends that the evidence was legally insufficient to support his convictions for solicitation of a minor and for sexual abuse of a minor by one with temporary care or custody or responsibility for supervision of the minor. He asserts that the question, “[c]an I keep going” was “purely rhetorical” and argues that the question did not constitute sexual solicitation because, at the time he asked W.W. if he could “keep going,” he had already been touching W.W. for several minutes and, thereafter, continued to do so.

He also maintains that the request to “keep going” did not specify the act he wished to keep doing and was “too ambiguous to qualify as a solicitation.” With respect to the sexual abuse of a minor charge, appellant argues that the evidence did not show that he had temporary care, custody or responsibility for supervising W.W. at the time he was sexually abused. The court is not persuaded.

Appellant finally contends that the circuit court committed plain error in admitting prejudicial evidence about why W.W. did not immediately report the abuse. Appellant also argues that the prejudice was compounded when the prosecutor referenced the testimony in closing argument. Because the court is reversing and remanding the case for a new trial on the first issue, it need not address this argument. Even if the court were to address it, it would decline appellant’s invitation to grant plain error review.

Judgment of the Circuit Court for Wicomico County reversed.

Domestic Relations

CPO modification

BOTTOM LINE: Where the trial court recently modified a constituted pension order entered in 1999, it erred. The trial court was procedurally barred from modifying the order because it is a final judgment, and husband’s delayed attempt at modification is prohibited by Maryland Rule 2-535(a)-(b).

CASE: Smith v. Smith, No. 1263, Sept. Term, 2023 (filed June 6, 2025) (Judges Albright, Kehoe, GETTY).

FACTS: Kim Dixon Smith and Kevin Jay Smith were granted a judgment of absolute divorce in the trial court in July 1999 after nine years and five months of marriage.  constituted pension order, or CPO, agreed to a that time specified that Mr. Smith was to pay one half of “that portion of the Defendant’s retirement/pension/deferred compensation benefits that accrued from the date of the parties’ marriage to the date of this judgment.” The formula for determining the former spouse’s share of Mr. Smith’s military benefits as provided in the CPO followed the formula as established in Bangs v. Bangs, 59 Md. App. 350 (1984).

In August 2020, Ms. Smith filed a motion in the trial court to enforce the judgment of absolute divorce that was issued by the court in 1999. At a subsequent hearing, Mr. and Ms. Smith set out different interpretations of the CPO formula language and thus different methods for calculating Ms. Smith’s retired pay award. Under Ms. Smith’s calculation the Bangs formula calculation under the 1999 CPO would equal 29.35 percent of Mr. Smith’s retired pay. Under Mr. Smith’s calculation, Ms. Smith should receive 6.84 percent of Mr. Smith’s retired pay. The trial court agreed with Mr. Smith.

LAW: Ms. Smith first avers that the trial court is procedurally barred from modifying the CPO because it is a final judgment, and Mr. Smith’s delayed attempt at modification is prohibited by Maryland Rule 2-535(a)-(b). The court agrees and holds that under Md. Rule 2-535(a)-(b), the trial court was not permitted to modify the Smiths’ CPO.

Both Mr. and Ms. Smith were represented by counsel in 1999, and the parties agreed to the unit of months as numerator and the unit of measurement. The numerator and unit of measurement as written in the Smiths’ CPO may lead to a windfall in Ms. Smith’s favor; however, “[this] windfall is the product of a formula freely negotiated and agreed to by the parties.”

Mr. Smith argues that the language of the 1999 CPO provides such authority to the trial court to modify the order’s provisions under certain circumstances. The court agrees that the trial court may have the authority to modify the CPO even after such a long delay in time for acceptance of the order by the plan administrator.

But that is not the case here. The CPO did not need to be modified in order to comply with any Defense Finance Accounting Service, or DFAS, requirements for distribution of the spousal share of retired pay. In fact, because Ms. Smith was deemed ineligible to receive direct payments from DFAS due to the short length of their marriage, there was no role for DFAS in the distribution process and therefore no need for DFAS acceptance under the Act.

Turning to the issue before the trial court, that was a motion by Ms. Smith to enforce the judgment issued by the court in 1999 and specifically for Mr. Smith to pay to Ms. Smith the retired pay award as provided for in the 1999 CPO. The court finds that 12.87 percent is the correct calculation. This calculation honors the agreement made between the parties in 1999 and adheres both to the units of measurement under the DFAS regulations and the finality of the 1999 judgment.

On remand, the trial court shall calculate any retired pay arrearages due to Ms. Smith, offset by the lump sum payment made by Mr. Smith. The trial court shall also order a payment schedule in conformity with the terms of the 1999 CPO.

Judgment of the Circuit Court for Baltimore County affirmed.

Sanctions

state agency

BOTTOM LINE: Where trial courts sanctioned the Maryland Department of Health pursuant to Md. Code Ann., Crim. Proc. § 3-106(c)(4) for its repeated and continued failure to comply with court orders and a statutory mandate involving the timely commitment of incompetent individuals, those sanctions were largely affirmed.

CASE: Maryland Department of Health v. Boulden, Nos. 534, 581, 582, 641, 643, 996 and 1291, Sept. Term, 2024 (filed June 3, 2025) (Judges GRAEFF, Leahy, Kehoe)

FACTS: This court is called upon, once again, to address the propriety of sanctions against the Maryland Department of Health for its failure to comply with court orders and a statutory mandate to admit individuals, who have been accused of committing a crime and been found incompetent to stand trial, or IST, and dangerous due to a mental disorder, to a Department mental health facility within 10 business days after the commitment order. This is a recurring, vexatious problem that the Maryland appellate courts have addressed in multiple cases over many years.

In this consolidated appeal, the Department challenges seven separate orders that were issued due to its failure to timely admit appellees, who had been found IST and dangerous, to a psychiatric facility. Six of these orders involved the imposition of statutory sanctions pursuant to Md. Code Ann., Crim. Proc., or CP, § 3-106(c)(4).

LAW: It is undisputed that the Department failed to admit Mr. Savage to a Department facility within ten business days, as required by CP § 3-106(c)(4). The court agrees with the Department, however, that the evidence was insufficient to support the finding of willfulness, as required for constructive civil contempt.

The court’s finding of willfulness was based on its finding that, in this case, the Department was not “exploring all options” to address this bed shortage, and when the Department does not have sufficient resources to comply with court orders, it should forcefully lobby the legislature to get those resources. There was evidence, however, that the Department had taken action to alleviate the bed shortage, and there still were not enough available beds to comply with the court order.

It is clear that the circuit court thought that the Department was not doing enough to alleviate the bed crisis. This court certainly understand the court’s frustration that the problem of delay in admitting patients is still ongoing after so many years. Without evidence that the Department could have obtained more funding, however, or that it made a deliberate effort not to pursue options to solve the lack of beds, a constructive civil contempt finding cannot be made.

With respect to the other six cases at issue in this appeal, the courts imposed sanctions pursuant to CP § 3-106(c)(4), which states that, if the Department violates the 10-day requirement for placing a defendant in a Department facility, “the court may impose any sanction reasonably designed to compel compliance, including requiring the Health

Department to reimburse a detention facility for expenses and costs incurred in retaining the defendant beyond the [ten-day] time period . . . at the daily rate specified in § 9-402(b) of Correctional Services Article.” The imposition of sanctions pursuant to CP § 3-106(c)(4), unlike in a contempt case, does not require a finding of willfulness; the statute “permits sanctions based on a mere failure to comply with the 10-day deadline, if the sanctions are ‘reasonably designed to compel compliance.’”

The Department’s sole challenge to the sanctions here is that they were not reasonably designated to compel compliance with the 10-day deadline to admit the defendants. It points to testimony by Department witnesses that sanctions would not compel compliance because there were no beds. The circuit court was “not obligated to believe that testimony and had significant discretion ‘to accept – or reject – all, part, or none of the testimony of [the] witness.’”

Moreover, even if the court believed the testimony that the Department could not comply with the court orders, that would not categorically preclude sanctions pursuant to CP § 3-106(c)(4). It was reasonable for the courts to believe that large sanctions will encourage the Department to make greater effort to explore other options to resolve this continued crisis.

With respect to the amount of sanctions, however, the court construes the statute to authorize the calculation of daily sanctions beginning on the 11th business day from the date of the commitment order. In the Baltimore County cases involving Mr. Lomax, Mr. Jackson, Mr. Goins and Mr. Hawkins, the court did not calculate the daily sanctions beginning on the 11th business day. Those orders are reversed and remanded for a new calculation regarding the amount of sanctions.

Judgment of the Circuit Court for Dorchester County reversed. Judgment of the Circuit Court for Kent County affirmed. Judgments of the Circuit Court for Baltimore County affirmed in part and reversed in part.

Search and Seizure

search 

BOTTOM LINE: Although the Maryland General Assembly enacted a new section of criminal law, effective July 1, 2023, that officer may not search a motor vehicle based solely on “the odor of burnt or unburnt cannabis,” because the search in this case occurred before July 1, 2023, the new law did not apply to this defendant.

CASE: Cutchember v. State, No. 1474, Sept. Term, 2023 (filed June 2, 2025) (Judges Graeff, Albright, WOODWARD).

FACTS: On Jan. 6, 2023, upon detecting an odor of cannabis coming from Lance Cutchember’s vehicle during a traffic stop, the vehicle was searched, cannabis and N,N-Dimethylpentylone were recovered and appellant was arrested. Effective July 1, 2023, the Maryland General Assembly enacted a new section of the Criminal Procedure, or CP, Article, § 1-211, which provides, among other things, that (1) a law enforcement officer may not search a motor vehicle based solely on “the odor of burnt or unburnt cannabis” and (2) evidence discovered or obtained “in violation” of this section is not admissible in a trial, a hearing, or any other proceeding.

In Kelly v. State, 262 Md. App. 295 (2024), this court held that § 1-211(c) is not retroactive. In Kelly, however, the search, suppression hearing, conviction and sentencing all occurred before the statute’s effective date of July 1, 2023. Therefore, this court asked the parties to submit supplemental briefing on the following question: “[i]n a case where the search occurred prior to July 1, 2023, but the trial or hearing at which the evidence was sought to be admitted or excluded occurred after July 1, 2023, which event should the Court view as establishing the operative date in determining whether CP § 1-211 applies?

LAW: Because the “right” in Kelly and the instant case is the right to be free of a search by a law enforcement officer based solely on the odor of burnt or unburnt cannabis, it logically follows that the date of the search is the key event in determining whether the right created by the statute in fact existed and thus whether a violation of that right had occurred. Therefore, because the search in the instant case occurred before the effective date of CP § 1-211, the remedy of “exclusion” under CP § 1-211(c) does not apply.

Appellant also contends that the language of CP § 1-211(c) does not reflect an intent by the legislature for the statute to apply only to cases where the search occurred after the effective date of July 1, 2023. Specifically, appellant argues that the statute’s language “obtained in violation of this section” is not “evidence of legislative intent that the general principle of applying a change in the law to all cases still pending on direct appeal should not apply here.” The court disagrees.

In Kelly, the court emphasized that any exception to the presumption that statutes are to be applied prospectively “cannot be applied if the General Assembly expresses a contrary intent.” It then determined that the language of CP § 1-211 indicated a “clear” intent on the part of the General Assembly that the statute should be applied prospectively.

It explained that CP § 1-211(a) created the “right” at issue, i.e., the prohibition against searches of automobiles based solely on the odor of burnt or unburnt cannabis, because prior to the effective date of CP § 1-211, Maryland courts adhered to the general rule that the odor of cannabis is evidence of a crime and therefore justifies a warrantless search of an automobile. Then, when CP § 1-211(c) expressly made the remedy of exclusion of evidence contingent upon a violation of that right created by the statute, the General Assembly had sent a “clear message” that CP § 1-211 “was not merely procedural or remedial, but rather was a substantive change to existing rights,” and thus could not be applied retroactively.

Judgment of the Circuit Court for St. Mary’s County affirmed.