This email newsletter from Andrews, Bongar, Gormley & Clagett provides free legal information you can use in your own life. Visit our website at SouthernMarylandLaw.com, for much more free, useful legal information. Know your options & be informed before you hire an attorney. Call us anytime at 301-645-4100 or 301-843-1950.
Search & Seizure - do you have privacy on your balcony?
Recently our Maryland Appellate Court decided that an overnight guest has a "reasonable expectation of privacy" on the balcony of her host's house (McGurk v. Maryland). Therefore, when the police officer searched her for evidence without a warrant, the evidence against her (drugs found in her pocket) is going to be suppressed at trial, and she will probably go free.
This is a good case to illustrate when the police can search your property, and what having a "reasonable expectation of privacy" means in criminal law. Deciding whether one has a reasonable expectation of privacy is often a key question in criminal law when deciding if the police can search or not.
Ms. McGurk was on a balcony in Ocean City in the early morning hours when an Ocean City police officer spotted her and walked up to the balcony, uninvited. She was arrested and searched. The search incident to the arrest (a legal search of a person when they are being arrested) revealed marijuana and cocaine.
Normally, a home is a constitutionally protected area that the police need a search warrant to enter. The Court had to decide whether the balcony is part of that protected area and whether McGurk, as a guest, was entitled to claim that protection.
According to the Supreme Court, an overnight guest has a reasonable expectation of privacy in the host's home. In McGurk, the Court held that the balcony was considered part of the home itself, which gave rise to a reasonable expectation of privacy. To decide this, the court considered such seemingly minor details as the placement of furniture on the balcony, its visibility from the street, and how it was customarily used by the owner and his guests.
The court examined where on the property a casual visitor might be expected to enter uninvited. The homeowner impliedly consents to have members of the public for instance enter onto a front porch to reach a doorbell. There is no reasonable expectation of privacy in those areas. The court considered whether there are physical barriers, such as fences, or signs such as "No Trespassing" or "Private Property" in making its determination. They considered that a delivery person would not come onto the balcony unless invited. The court concluded that the balcony was not open to the public and hence there was an expectation of privacy for the home owner, and any guests of the home owner. The court also considered that the police entered at 3:15 a.m., saying that no one would expect to have uninvited visitors on the balcony at that hour.
Ultimately the Court held there was a reasonable expectation of privacy for Mr. McGurk. Therefore, the motion to suppress should have been granted. This keeps the evidence obtained as a result of the illegal search out and will likely lead to an acquittal of the defendant.
While this is probably right in the legal sense, do you think the law should protect this young lady and her drugs? Would you want a police officer tramping around on your balcony, or in your back yard, without any reason? These legal questions are always tricky and open to debate. To read more details about the case, see our blog post about it. You can also read the entire case on the Maryland Judiciary's web site if you are so inclined.
Disclaimer: This is general information about Maryland law. It is not legal advice, and there is no attorney-client relationship until you meet with an attorney and sign a retainer. Effective legal advice depends on understanding the unique facts of your situation. If you have a legal question, get advice from a lawyer before proceeding. That is the best advice we can ever give you.
You are receiving this newsletter because you signed up for it, or you are a client of our firm. We do not spam. If you wish to unsubscribe, please follow the directions below. This content is written by Tucker Clagett, a Partner at Andrews, Bongar, Gormley & Clagett, a full service law firm with offices in Waldorf & Lexington Park. If you have questions or comments or topic suggestions, please feel free to email me directly. Thank you for reading.
This message was sent to clagett@southernmarylandlaw.com from: Andrews, Bongar, Gormley & Clagett | 11705 Berry Road, Suite 202 | Waldorf, Maryland 20603
Manage Your Subscription:
http://app.icontact.com/icp/mmail-mprofile.pl?r=1682960&l=2809&s=UVTO&m=531474&c=157467
Forward To a Friend:
https://app.icontact.com/icp/core/message/forward?m=531474&s=1682960&c=UVTO&cid=157467
Request Information through our automated email form, but read the rules on this page first.
Andrews, Bongar, Gormley & Clagett, P.A.
Southern Maryland Attorneys
» Waldorf Office
11705 Berry Road, Ste 202
Waldorf, Maryland 20603
» Lexington Park Office
22335 Exploration Dr., Ste 2030
Lexington Park, Maryland 20653
301-843-1950 (DC Metro)
301-645-4100 (Local)
301-863-7480 (St. Mary's)
410-535-9449 (Calvert)
Sign up for our free newsletter
More legal info & tips to keep you safe.
For examples of past issues, click here.
• 301-843-1950 (DC Metro) • 301-645-4100 (Local) • 301-863-7480 (St. Mary's) • 410-535-9449 (Calvert)