Jones v. State, 213 Md. App. 483

Background

On Nov. 5, 2010, Jomel Fields was shot multiple times during an attempted robbery at 923 E. Church St., Salisbury; officers observed two men firing and pursued a fleeing suspect.
Police apprehended appellant Cory Jamaul Jones shortly after the shooting; Jones discarded a gun that officers recovered and admitted at trial; ballistics did not exclude that gun as a source of some recovered bullets.
Detective Hitty swabbed Jones’s hands for gunshot residue (GSR) about 45 minutes after arrest; the swabs tested positive for particles consistent with GSR and the kit was admitted without objection at trial.
Jones moved to suppress the GSR results (arguing Fourth, Fifth, and Sixth Amendment violations); the motions court denied the motion, finding the swab was a noninvasive search incident to arrest and justified by exigency.
At trial the parties stipulated Jones was prohibited from possessing a regulated firearm; witnesses described the recovered weapon as an assault-type handgun; the jury convicted Jones of attempted first-degree murder, first-degree assault, use and possession of a firearm (including illegal possession of a regulated firearm), and related counts.
Jones appealed, challenging denial of suppression of GSR, sufficiency of evidence that the weapon was a “regulated firearm,” and the trial court’s giving of a flight instruction.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Jones)	Held
Were GSR swabs admissible despite warrantless collection?	Swab was lawful as a search incident to a lawful arrest and alternatively justified by exigent circumstances (evanescent GSR).	Warrantless collection violated Fourth Amendment; also argued (unpreserved) Fifth and Sixth Amendment claims regarding self-incrimination and right to counsel.	Denied suppression: court upheld search-incident-to-arrest and exigency exceptions; Fifth/Sixth claims not preserved and, in any event, GSR is nontestimonial and not a "critical stage."
Sufficiency—was State required to prove the gun was a "regulated firearm" beyond lay ID?	Witnesses identified weapon as an assault-type handgun; jury examined the gun; parties stipulated Jones was disqualified from possessing a regulated firearm.	Insufficient proof because no expert/classification testimony that the recovered weapon met statutory definition of a regulated firearm.	Evidence sufficient: lay identifications plus jury inspection permitted reasonable inference that the gun met statutory definition of a regulated handgun.
Was a flight instruction properly given?	Flight (running when officers attempted to detain) is evidence of consciousness of guilt and a proper instruction was warranted.	Flight could be explained by alternative motive (avoid arrest for illegal possession of the gun); instruction should not have been given.	Instruction proper: unlike Thompson, alternative motive was charged/argued to the jury and the instruction expressly allowed for innocent explanations; trial court did not abuse discretion.

Key Cases Cited

United States v. Pettiford, 295 F. Supp. 2d 552 (D. Md. 2003) (GSR swab admissible where arrest supported by probable cause and evidence is evanescent)
United States v. Johnson, 445 F.3d 793 (5th Cir. 2006) (GSR testing permissible incident to lawful arrest to prevent destruction of evidence)
Cupp v. Murphy, 412 U.S. 291 (1973) (limited warrantless physical searches to preserve highly evanescent evidence are reasonable)
Thompson v. State, 393 Md. 291 (2006) (framework for evaluating whether flight evidence supports consciousness-of-guilt instruction)
Belote v. State, 411 Md. 104 (2009) (summarizing exceptions to warrant requirement: search incident to arrest and exigent circumstances)