MD: Def agreed to postpone suppression hearing until trial and then didn’t bring it up; invited error and not preserved

Defendant failed to preserve his Fourth Amendment claims for appeal. You don’t get a hearing just by asking. He didn’t make a proffer in his Franks motion which was enough to deny it. Then, whatever issue was left, the defense agreed to consider the motion later in the trial, and then it wasn’t because the defense didn’t bring it up again. That was waiver. “Counsel cannot stand silent and invite error. The right to a ruling on a pending motion ‘carries with it a commensurate responsibility [to bring the motion] to the attention of the trial court.’ … Appellant had to remind the court if he still desired a hearing on his motion, because failing to object to a court’s decision not to rule on a motion waives the right to appeal that motion.” Young v. State, 2017 Md. App. LEXIS 1188 (Dec. 1, 2017):

In the event that appellant is claiming he was entitled to a Franks hearing, he is wrong because his arguments fail to satisfy the threshold requirements to entitle him to such a hearing. First, he has not made a substantial preliminary showing that the affiant intentionally or recklessly included false statements in the supporting affidavit for the search warrant. In fact, he never even claims intentional or reckless falsehood, which is the entire basis for a Franks motion. Second, bare allegations in a motion without affidavits or the like are insufficient to satisfy the stringent threshold requirement which must be met before a defendant may go beyond the four corners of a warrant. Appellant offers no witness testimony or other evidence to claim that Detective Larbi’s affidavit for the search warrant was knowingly or recklessly false. He speculates that the affidavit’s evidence might be stale and merely disputes Detective Larbi’s report of a confidential informant buying drugs from appellant.

Moreover, and dispositive of the issue, as reflected in the quoted colloquy, the record suggests that the parties resolved any Franks issue in chambers. It appears that all that remained on any pre-trial motion was a factual dispute between the State and appellant as to whether his arrest was lawful.

We turn to the remaining portion of appellant’s motion: the legality of his arrest. There is no dispute that after the first day of trial and the parties’ agreement to address the motion the next day, no one mentioned the outstanding motion again. There is no explanation on the record as to why defense counsel did not address the motion first thing the next morning. Most significantly, counsel did not object when the incriminating evidence, arguably the fruit of an illegal arrest, was introduced by the State into evidence.

Procedurally, appellant was entitled to a hearing on his motion to suppress fruits of an illegal arrest. The court offered him a hearing, but then agreed to defer the hearing to the next morning. While it was incumbent upon the court to address the motion and to hold a hearing, when the court failed to do so, it was incumbent upon defense counsel to raise the issue and bring it to the court’s attention. Then, when the State offered the evidence, appellant remained silent. Maryland Rule 5-103(a)(1) allows an admission of evidence to be an appealable error only if “a timely objection or motion to strike appears of record.” A contemporaneous objection to the admission of evidence is required. Malarkey v. State, 188 Md. App. 126, 156, 981 A.2d 675, 693 (2009). Here, there was no objection.

Counsel cannot stand silent and invite error. The right to a ruling on a pending motion “carries with it a commensurate responsibility [to bring the motion] to the attention of the trial court.” White v. State, 23 Md. App. 151, 156, 326 A.2d 219, 222 (1974). Appellant had to remind the court if he still desired a hearing on his motion, because failing to object to a court’s decision not to rule on a motion waives the right to appeal that motion. Malarkey, 188 Md. App. at 156, 981 A.2d at 693. In Malarkey, the judge explicitly reserved on each of three motions for judgment of acquittal and never ruled on any of them. Id. at 155, 981 A.2d at 692-93. The defendant never objected or otherwise claimed an entitlement to a ruling on his motions, even as the case went to the jury. Id. at 155-56, 981 A.2d at 692-93. Like appellant, the defendant’s failure to bring the question to the court’s attention waived his right to appeal it. Id. at 156, 981 A.2d at 693.

Even if both the court and counsel erred, the deciding factor in this case is counsel’s utter silence when the State introduced the incriminatory evidence, i.e., the fruits of the search and the incriminatory statements. Appellant was beyond question required to make a contemporaneous objection when the State offered the evidence to “afford the trial court an opportunity to cure or correct the error.” Malarkey, 188 Md. App. at 157, 981 A.2d at 693. He failed to do so.