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MD: State's changing theory on suppression after evidence in denied defendant a fair hearing; lifting shirt exceeded frisk

By John Wesley Hall, Jr.

State’s changing theories of the justification for the warrantless search of the defendant’s person after the proof closed denied the defendant a fair opportunity to litigate the search issue. “We hold that the suppression hearing ruling, based on an unraised, undeveloped, and unargued Fourth Amendment theory, was in error and that the physical evidence should, therefore, have been suppressed.” Then, the lifting of defendant’s shirt after the frisk exceeded the scope of the frisk, and it violated the Fourth Amendment. Epps v. State, 2010 Md. App. LEXIS 90 (May 28, 2010): Directing the appellant to lift his shirt went beyond the limited scope of a frisk. It revealed “a small, clear plastic baggie … protruding from the top of his pants...continue to full post

Full post as published by Fourth Amendment on June 04, 2010 (boomark / email).