Mimesis Law
28 February 2020

In Maryland, Business As Usual For The Fourth Amendment

Apr. 28, 2016 (Mimesis Law) — Earlier this month, my colleague and fellow Fault Lines contributor, JoAnne Musick, discussed a Maryland Court’s holding that police must get a warrant before using a Stingray to gain evidence on alleged criminals. The fallout from that ruling has hit Baltimore, and the ramifications are typical.  A judge principled enough to follow the law stuck to the holding of a higher court, despite her nagging concern that a killer would go free.

A city judge threw out key evidence in the 2014 killing of a woman in Northwest Baltimore because police obtained it after using a powerful cellphone tracking device — the latest fallout from years of authorities concealing how they deployed the device.

On Monday, Circuit Judge Yolanda Tanner suppressed evidence found in Robert Copes’ apartment “with great reluctance.”

This is a good call, despite Judge Tanner’s reluctance.  Those jurists who make a principled decision based in the law, even if it’s not popular or what they would like the outcome to be, should get a nod from the public for doing their jobs the right way the first time.  Even if Robert Copes wasn’t the most stellar human being, he deserves the same defense as someone who simply ended up in the wrong place at the right time.  One can appreciate a judge who actually understands Blackstone’s ratio and sticks to it, instead of pandering to a voter base that prefers “tough on crime.”  If there were outside motivations for Judge Tanner’s ruling, that’s unclear, but it’s good Judge Tanner chose to follow the law even if it made her uncomfortable.

The source of the discomfort, however, isn’t really clear from Judge Tanner’s ruling. It’s hard to tell if this was a politicized ruling, a lack of trust between Judge Tanner and the Baltimore Police, or something deeper.  Whatever the rationale, it’s clear Baltimore is one of the cities heavily implicated in using Stingray technology at the expense of people’s Fourth Amendment rights.  When you’re one of the cities linked to a non-disclosure agreements at the expense of catching the “bad” guys, that’s going to be an item the public takes into account.  When a jurist takes that tack, it’s probably going to be a bad day for your attempt at circumnavigating the Constitution.  Judge Tanner’s remarks fell in line with her decision to put the Fourth Amendment before cop authority.

Tanner said it was true that Kershaw might have eventually found Copes on his own. “I can’t play the ‘what if’ game with the Constitution,” she said, lamenting that it protects people from illegal searches even when the defendant is “likely guilty.”

Judge Tanner’s lament is understandable if you’ve spent any time in the criminal justice system.  No judge wants to let a potential murderer go, and no judge wants to be seen as the one person who didn’t hold to a “tough on crime” approach during election season.  However, Tanner made the principled call here.  It was the right thing to do, even if Copes might have been the person who killed Ina Jenkins.  The Non Disclosure Agreements Maryland Police used when signing on for the Stingray devices may have killed this hearing, but that didn’t stop them from trying to nail Copes.  The prevalence of information on these NDAs and how police used them only adds to the validity of Judge Tanner’s ruling, even if she patted the Baltimore PD’s tummy while rejecting their rationale for violating Copes’ Fourth Amendment rights.

Tanner said she believed police investigators acted in good faith, following the procedures that had been put in place by the city law department and the state’s attorney’s office.

“It was nonetheless an unconstitutional search,” Tanner said.

Judge Tanner’s beliefs weren’t necessarily constitutional or grounded in the law.  Yet, she realized this, and managed to acknowledge the “good work” Baltimore Police did while tossing the key evidence that might have linked Copes to the murder of Ina Jenkins.

It’s common for judges to tell local cops they did good.  No one in an elected position wants to be seen as anything less than “tough on crime,” and certainly not “anti-police.”  Despite this, in a world where people choose to explain away police and prosecutorial misconduct, Judge Tanner’s ruling is worth mentioning as it shows someone in a black robe managing to put her personal feelings aside when ruling on the law.

The only troubling aspect of the Copes case is a refusal to accept an adverse outcome in the face of Judge Tanner’s ruling.  If you manage to gain a victory for the Fourth Amendment, or any other constitutional right, the police and DAs will work tirelessly to find some way of getting around that ruling.

In the case of Robert Copes, all it took was another series of charges to signal the State was still in charge, even after a judge declared the original troublesome evidence inadmissible.  Forget the murder charge, let’s just get him on rape.

As the hearing concluded, prosecutors informed Tanner that police had filed new charges against Copes in connection with a rape that occurred in the 1990s.

“You’re not done yet, buddy boy,” Jenkins said to Copes as Copes was led out of the room.

And they won’t be until the prosecution says they’re done.  Welcome to the new normal.  We hope you enjoy it.

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