Gerety & Antkowiak v. State

Damian Gerety v. State of Maryland, No. 2349, September Term, 2019; Briana Antkowiak v. State of Maryland, No. 2365, September Term, 2019. Opinion by Nazarian, J. CRIMINAL PROCEDURE – CONTROLLED SUBSTANCES – DEFENSES – MEDICAL NECESSITY OR ASSISTANCE People who possessed and used heroin in a vehicle parked in a public parking lot were immune from prosecution charges for simple possession of heroin under Maryland’s Good Samaritan Law, (2018 Repl. Vol.), § 1-210(c) of the Criminal Procedure Article (“CP”) because the police were present at the scene, and discovered them and the drugs, solely as a result of a 911 call by a passer-by. CRIMINAL PROCEDURE – CONTROLLED SUBSTANCES – DEFENSES – ATTENUATION Immunity from prosecution under CP § 1-210(c) is not attenuated or otherwise eliminated by the fact that the person possessing heroin had outstanding warrants that were discovered during the encounter with police.

Circuit Court for Anne Arundel County Case Nos. C-02-CR-19-002625 & C-02-CR-19-02623 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 2349 & 2365 September Term, 2019 ______________________________________ DAMIAN GERETY v. STATE OF MARYLAND ______________________________________ BRIANA ANTKOWIAK v. STATE OF MARYLAND ______________________________________ Kehoe, Nazarian, Eyler, James R. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Nazarian, J. ______________________________________ Filed: February 24, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-25 14:12-05:00 Suzanne C. Johnson, Clerk This case probes the boundaries of the immunity provisions of Maryland’s Good Samaritan Law, Maryland Code (2002, 2018 Repl. Vol.), § 1-210 of the Criminal Procedure Article (“CP”). That statute grants immunity from arrest, charge, and prosecution for certain drug and alcohol related crimes, and for sanctions flowing from those crimes, when the evidence supporting the charges is obtained “solely as a result” of a person seeking or receiving medical assistance for a suspected drug or alcohol overdose.

In cases consolidated in the Circuit Court for Anne Arundel County, Damian Gerety and Briana Antkowiak each pleaded not guilty on an agreed statement of facts to one such crime—possession of heroin—then moved for judgment of acquittal, arguing that they were immune from prosecution for the charges because the drug evidence was seized “solely as a result of” a call for medical assistance made by a bystander. See CP § 1-210(c). The circuit court denied the motions, convicted each of the single charge, and sentenced each to time served. We hold that because the police were present at the scene and discovered the evidence supporting the charges “solely as a result” of a call for medical assistance, Mr. Gerety and Ms. Antkowiak were immune from prosecution, and we reverse the convictions.

I. BACKGROUND A. The 911 Call On October 23, 2019, around 6:30 p.m., a man identifying himself only as Charles called 911 from the parking lot of a Dunkin Donuts on Camp Meade Road in Linthicum Heights. The dispatcher asked if he needed “police, fire, or ambulance” and he responded, “I was trying to get a police car.” He then told the dispatcher that a man and a woman were inside a parked SUV and appeared to be “either sleeping or they are really highed out.”1 He provided the make and model of the vehicle, as well as the license plate number. In response, the dispatcher said, “let me get the paramedics on the line.” Charles told the paramedics, “I don’t know if they’re just sleeping, or–or they’re really high–you know, really high.” At the end of the call, he said, “I’m pretty sure they’re okay; you know what I mean?” He added, “I don’t want to knock on their window and frighten them.” He asked if he needed to stay at the scene and the dispatcher told him he was free to go. B. The Police and Medical Response Anne Arundel County Police Officer Sam Silva responded to the Dunkin Donuts for a “report of a check a sick or injured subject.” Emergency medical technicians from the fire department were on the scene already.

An EMT advised Officer Silva that the SUV was no longer in the parking lot, but believed it had moved to a parking lot across the street, the lot serving a Checkers restaurant. Officer Silva responded to that location while the medics remained behind. He discovered two people, later identified as Mr. Gerety and Ms. Antkowiak, in the front seats of an SUV. Mr. Gerety was in the driver’s seat.

Both were “nodding out,” which Officer Silva knew to be “a symptom of recent drug use.” He knocked on the passenger 1 The transcript from the hearing mistakenly quotes the caller as stating that the couple was “either tripping, or they are really highed out.” (Emphasis added.) 2 window2 and Ms. Antkowiak lowered it. Officer Silva asked if they needed medical assistance and both parties responded “No.” Officer Silva explained that he was there because a citizen reported that they were “passed out in their vehicle” and “was concerned for their wellbeing.” Mr. Gerety “continued to nod in and out,” causing Officer Silva to ask him again if he was all right. Mr. Gerety responded “Yeah, I’m good.” Officer Silva asked both occupants of the vehicle for identification. Mr. Gerety lit a cigarette and “appeared nervous as he fidgeted through his center console, looking for his driver’s license.” Ms. Antkowiak claimed that she was seventeen years old and did not have any identification.3 She provided a false name and date of birth, slurred her words as she spoke, and “continuously nodded in and out.” Mr. Gerety provided his real name and date of birth, but said that he did not have his identification with him.

Officer Silva asked Mr. Gerety if there were any illegal items in his vehicle. Mr. Gerety responded “No.” Officer Silva asked for consent to search the vehicle. Mr. Gerety “appeared nervous, and in a slurred voice said, ‘I don’t think so; this isn’t my car.’” Two other officers monitored the vehicle while Officer Silva ran Mr. Gerety’s name (and the false name provided by Ms. Antkowiak) through computer databases. He discovered that Mr. Gerety had “outstanding warrants” for his arrest.

Officer Silva returned to the vehicle, directed Mr. Gerety to step out, and placed him under arrest. 2 The SUV was parked too close to an adjacent vehicle for Officer Silva to approach the driver’s side. 3 Ms. Antkowiak was almost twenty-one years old. 3 Before Mr. Gerety complied with Officer Silva’s command, “he was observed to be reaching down . . . towards the area under his seat, between the seat and door.” The police searched the area around the driver’s seat and found a “clear triangular capsule” containing suspected cocaine. At that point, the police directed Ms. Antkowiak to get out of the vehicle, and Officer Silva conducted a full search of the SUV. He uncovered “multiple colored and clear capsules containing an off-white powder substance” suspected to be heroin and Fentanyl; “multiple clear, triangular vials containing a white, rock-like substance” suspected to be crack cocaine; “several small trashcans containing a white, rock-like substance”; “multiple unmarked pills”; “several glass jars, with pink lids” containing suspected cocaine; a syringe; and a glass pipe. The Anne Arundel County Police Department’s Crime Lab analyzed some of the items seized and found 1.44 grams of heroin.

C. The Criminal Proceedings On November 15, 2019, Mr. Gerety and Ms. Antkowiak each were charged by criminal indictment with thirteen counts: possession with intent to distribute heroin, cocaine, fentanyl, a mixture of heroin and fentanyl, and pregabalin4 under Maryland Code (2002, 2012 Repl. Vol.) § 5-602 of the Criminal Law Article (“CR”); conspiracy to distribute heroin, cocaine, fentanyl, and pregabalin; and possession of heroin, cocaine, fentanyl, and pregabalin under CR § 5-601. Their cases were consolidated. 4 Pregabalin is marketed under the brand name Lyrica and is a Schedule V controlled dangerous substance. See CR § 5-406(e)(4). 4 At a hearing on January 31, 2020, the State informed the court that it was proceeding only on the count charging each defendant with simple possession of heroin, subject to an agreed statement of facts.5 Mr. Gerety and Ms. Antkowiak each entered a plea of not guilty to that charge with the understanding that after the State presented the agreed statement of facts, they would argue that they were immune from prosecution under CP § 1-210(c).

The State played the recording of the 911 call for the court, read into the record the agreed statement of facts, and introduced the drug analysis into evidence. Defense counsel then moved for judgment of acquittal as to each defendant, arguing that they were immune from prosecution for simple possession under the agreed facts. The defense took the position that because the only concern raised by the 911 caller was the safety of Mr. Gerety and Ms. Antkowiak, who appeared to be high and possibly unconscious, the police response resulted directly from the call, so they fell within the immunity provisions of the law. The State responded that the defendants were not immune under the agreed facts because they did not receive medical assistance—in fact, they refused it—and therefore were not actually experiencing a medical emergency.

Alternatively, the State argued 5 During sentencing, the State told the court that it elected not to go forward with the possession with intent to distribute and conspiracy to distribute charges because its expert did not believe that the quantities of drugs found in the vehicle were consistent with distribution of narcotics. The State entered a nolle prosequi to the remaining counts against each defendant at the end of the hearing. 5 “inevitable discovery” based upon Mr. Gerety’s outstanding warrants, which justified a search of the vehicle independent of the welfare check.6 After taking a recess to review the law, the court ruled that the defendants were not immune under CP § 1-210(c). It found “that there [were] facts that distinguish[ed] Noble [v. State, 238 Md. App. 153 (2018)],” and reasoned that it was “enormously important” that the police “did not respond to the location where their attention was originally drawn by the caller.” That was significant, in the court’s view, because the movement of the vehicle implicated public safety concerns that must be balanced against the legislative aim underlying the statute, i.e., to combat the opioid epidemic by encouraging reporting of overdoses.7 The court concluded that the legislature did not “intend[] to create a forever shield [for] everything factually downstream from a response[] . . . to a call[.]” The court also noted that the movement of the vehicle served as evidence that Mr. Gerety, at least, had regained his faculties after the 911 call was made, and to a degree that permitted him to operate a motor vehicle. This diminished the likelihood that Mr. Gerety was suffering from a medical emergency and demonstrated that he should no longer be “under the . . . umbrella Good Samaritan shield of protection . . . .” The court also considered that the 911 caller initially asked for the police, not paramedics, to respond, and that the caller was a stranger to the defendants. 6 The trial court cut off this argument, noting that the defendants were not raising a “Fourth Amendment suppression issue.” 7 The State did not charge Mr. Gerety with a traffic violation. 6 For all of those reasons, the court denied the motion for judgment of acquittal and convicted Mr. Gerety and Ms. Antkowiak of the charge of possession of heroin.

The court sentenced them to time served (101 days), and this timely appeal followed.

II

DISCUSSION Mr. Gerety and Ms. Antkowiak reprise on appeal the argument they made in the circuit court, i.e., that CP § 1-210(c) immunized from criminal prosecution for possession of heroin because the police discovered them and the drugs solely as a result of the 911 call.8 We agree with them that the circuit court’s narrow construction of Maryland’s Good Samaritan statute was inconsistent with the plain language of the statute and its legislative purpose, as first analyzed in Noble, 238 Md. App. at 153 , and hold that both were immune from prosecution under these circumstances. Because the sole issue on appeal turns on the construction of CP § 1-210, we review the circuit court’s ruling de novo. See Bellard v. State, 452 Md. 467, 480 (2017) (“An appellate court reviews without deference a trial court’s interpretation of a statute.” (quoting Howard v. State, 440 Md. 427, 434 (2014)). In construing CP § 1-210, our primary task is to determine what the General Assembly intended: The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature.

A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny. 8 They phrased the Question Presented in their briefs as follows: “Were appellants immune from criminal prosecution under the Good Samaritan statute, Criminal Procedure Article § 1-210?” 7 To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to the legislative intent ends ordinarily and we apply the statute as written without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with “forced or subtle interpretations” that limit or extend its application. We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone.

Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope. Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose and relative rationality and legal effect of various competing constructions.

In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical or incompatible with common sense. State v. Bey, 452 Md. 255, 265-66 (2017) (quoting State v. Johnson, 415 Md. 413 , 421– 22 (2010) (quoting Lockshin v. Semsker, 412 Md. 257 , 274–77 (2010))). 8 Consistent with these principles, our starting point is the language of the statute. CP § 1-210 is designed to provide a form of immunity from prosecution and sanctions for substance users who report or experience a medical emergency: (a) The act of seeking, providing, or assisting with the provision of medical assistance for another person who is experiencing a medical emergency after ingesting or using alcohol or drugs may be used as a mitigating factor in a criminal prosecution of: (1) the person who experienced the medical emergency; or (2) any person who sought, provided, or assisted in the provision of medical assistance. (b) A person who, in good faith, seeks, provides, or assists with the provision of medical assistance for a person reasonably believed to be experiencing a medical emergency after ingesting or using alcohol or drugs shall be immune from criminal arrest, charge, or prosecution for a violation of § 5-601, § 5-619, § 5-620, § 10-114, § 10-116, or § 10-117 of the Criminal Law Article if the evidence for the criminal arrest, charge, or prosecution was obtained solely as a result of the person’s seeking, providing, or assisting with the provision of medical assistance.

(c) A person who reasonably believes that the person is experiencing a medical emergency after ingesting or using alcohol or drugs shall be immune from criminal arrest, charge, or prosecution for a violation of § 5-601, § 5-619, § 5- 620, § 10-114, § 10-116, or § 10-117 of the Criminal Law Article if the evidence for the criminal arrest, charge, or prosecution was obtained solely as a result of the person seeking or receiving medical assistance. (d) A person who seeks, provides, or assists with the provision of medical assistance in accordance with subsection (b) or (c) of this section may not be sanctioned for a violation of a condition of pretrial release, probation, or parole if the evidence of the violation was obtained solely as a result of the 9 person seeking, providing, or assisting with the provision of medical assistance. The first case analyzing this statute, Noble, addressed and resolved one source of ambiguity: whether the immunity attached only to the person who called for assistance, as the State argued there, or also to the person experiencing the medical emergency. Noble involved subsection (d) of the statute, which relates to sanctions for violation of conditions of pretrial release, probation, and parole, because the appellant in that case challenged a finding that he had violated his probation by failing to abstain from drugs. 238 Md. App. at 156 .

The circuit court had found him in violation based on evidence found after a 911 call placed by his girlfriend. He argued that he was immune from sanction under CP § 1-210(d) even though he hadn’t himself made the call, id. at 157–59, and we agreed, holding that though subsection (d) did not specify that it applied to passive recipients of medical assistance, that section cross-referenced subsection (c), which did apply to persons “receiving medical assistance.” Id. at 164. We grounded our holding in Noble in the purpose of the statute, which was enacted in response to the opioid crisis and recognized a shift in public policy toward prioritizing the prevention of overdose deaths over the prosecution of “certain, limited, crimes” often committed by drug users. Id. at 167 (footnote omitted).

The overarching purpose of CP § 1-210 is to “save lives” by “encourag[ing] people to call for medical assistance when a person is believed to be suffering from an overdose.” Id. To achieve that purpose, CP § 1-210 grants limited immunity both to persons who seek or obtain medical assistance for others at subsection (b), and to persons who seek