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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. GREGORY MCNEILL * * Criminal No. AMD 03-0033 * *** ORDER DENYING MOTION FOR RECONSIDERATION Now pending is the Government's motion for reconsideration of the court's order granting defendant's motion to suppress evidence.1 The motion is denied for the reasons stated within. I. Defendant Gregory McNeill was arrested for "assault by threat" by a Baltimore City police officer following an argument with his ex-girlfriend in front of a Baltimore 7-Eleven on January 7, 2003. He was taken to a local police station and once at the station, after receiving Miranda warnings, McNeill confessed to two bank robberies, the offenses with

According to the official clerk's docket, the motion for reconsideration was never filed. In a letter to chambers dated July 5, 2005, the Government forwarded what it described as "one courtesy copy" of the motion for reconsideration. In fact, however, a recent examination of the "copy" suggests that what was forwarded to chambers may not have been a "copy" of the motion but the motion itself, inasmuch as the "copy" contained a "live" signature of the Government attorney on both the motion and the certificate of service. Under the local rules of this court, "any motion to reconsider any order issued by the Court shall be filed with the Clerk not later than 10 days after entry of the order." L.R. 105.10 (made applicable to criminal cases under L.R. 207) (emphasis added). Under the circumstances here, the court will forward the motion to the clerk together with this Order, but offers no opinion as to whether the Government properly filed the motion. Rather, the court proceeds on the assumption, but not a finding, that it did.
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which he is charged in the instant case. McNeill moved to suppress his statements to police, inter alia, as the fruits of an unlawful arrest effected in violation of the Fourth Amendment, as made applicable to the states by the Fourteenth Amendment. The court granted McNeill's motion to suppress for the reasons stated from the bench following a suppression hearing. In a "Motion for Reconsideration" based on "recently found Fourth Circuit cases," the Government argues that the court should reverse its ruling. The parties have fully briefed their arguments, and the court has carefully considered the issues presented. As explained below, assuming this court has jurisdiction to examine the motion (see supra n. 1), the court shall deny the Government's motion for reconsideration. II. The below facts are based on the account given by Officer Paul McMillan during the suppression hearing. Around 5:00 p.m. on January 7, 2003, Tonya Malone called 911 to complain that she was being harassed by McNeill, who is her ex-boyfriend. Officer McMillan arrived at the 7-Eleven, located at 2701 W. Franklin Street in Baltimore, about five minutes after the call was placed. He located Malone and McNeill near a payphone outside the store. The two approached the officer at the same time, but right away he separated them by about ten feet. He then asked to hear Malone's story first. Malone told the officer that McNeill was harassing her and that she had obtained an ex parte protective order against him.2 Upon

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Malone claimed she had obtained the ex parte order but did not have it with her. Indeed, (continued...) -2-

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hearing about the protective order, McNeill verbally inserted himself into the conversation between the other two, exclaiming, "You bitch, you dead, you know I'm going to get you." Officer McMillan could not see McNeill when McNeill made the statement because McMillan was facing Malone. Thus, he could not see whether McNeill's oral statement was accompanied by or punctuated with any acts or body movements. Nevertheless, the officer immediately arrested McNeill for "assault by threat."3 After he was arrested for "assault by threat," as a result of subsequent custodial interrogation, McNeill gave the police a statement in which he admitted that he had committed two bank robberies.4 He was charged by indictment with those robberies and faced trial in this court. At the hearing on the motion to suppress, the Government did not dispute the fact that the admissibility of McNeill's statements (and any evidence derived from the statements) hinged on the legality of McNeill's arrest. Thus, the Government offered two theories to support its assertion that the arrest was consistent with the Fourth Amendment (made applicable to the states by the Fourteenth Amendment). First, the Government argued that

(...continued) such an order was issued to Malone earlier that day, at 2:05 p.m., but the arresting officer could not confirm its existence. As the court mentioned at the hearing, Officer McMillan can hardly be criticized for taking what he thought was appropriate action to protect Malone. Nevertheless, the court is called upon to apply settled constitutional doctrine to the undisputed facts in ruling on the motion to suppress. McNeill also challenged the statements on Fifth Amendment grounds, but it was and is unnecessary for the court to determine those issues.
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there was probable cause to arrest McNeill for assault.5 The court rejected that argument, both because there is no such crime in Maryland as "assault by threat," and, more fundamentally, because it was clear from the facts that McNeill did not have (and no reasonable officer could have concluded that he had) the imminent intention to batter Malone at the time he made the oral threat in the officer's presence, nor was there reason to believe that the threat put Malone in reasonable apprehension of such harm at that time. The Government does not contest that ruling in its motion for reconsideration. Second, the Government argued that, even if the officer did not have probable cause to arrest McNeill for assault (or "assault by threat"), he had probable cause to arrest him for the misdemeanor statutory offense of harassment.6 The court also rejected that argument-"The crime of common law assault is an attempt by force to injure the person of another, and a battery is committed whenever the menaced violence of assault is done in the least degree . . . . Any attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another, that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention . . . [I]t is not necessary that there should be a specific purpose to do a particular injury." Williams v. State, 4 Md.App. 643, 647-648, 244 A.2d 619, 622 (1968)(deletions in original; internal quotation and citation omitted). At the time of the events giving rise to this case, the Maryland common law crime of assault had been abrogated by statute. See Md. Code Ann., Crim. Law

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