Pubdate: Sat, 02 Dec 2000
Source: Baltimore Sun (MD)
Copyright: 2000 The Baltimore Sun, a Times Mirror Newspaper.
Contact:  501 N. Calvert Street P.0. Box 1377 Baltimore, MD 21278
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Author: Robert F. Patrick

COURT OVERTURNS MAN'S DRUG CONVICTION

Suspect was stopped in Delaware, searched later in Maryland

The state's second-highest court overturned the felony drug conviction
of a Salisbury man yesterday, with the Eastern Shore community of
Delmar playing a pivotal role in the decision.

Maryland's Court of Special Appeals reversed the conviction of
Benjamin B. Fontaine, who had been arrested in Delmar, which straddles
the Maryland--Delaware border. Delmar police have jurisdiction in both
states.

Fontaine was stopped in the Delaware portion of Delmar on Sept. 8,
1999, after Detective Ronald Marzac recognized him as a man whose
driver's license had been suspended in Maryland, according to the
court opinion. "Trace" amounts of marijuana were found in the gray
Cadillac, and police took Fontaine to the Delmar police station, two
blocks across the state line in Maryland.

Marzac said he saw the man fidgeting as if attempting to stick
something down the rear of his pants while Fontaine's car was being
pulled over in Delaware, according to the court decision.

At the station, Fontaine was strip-searched and police found about 12
grams of crack cocaine and a small bag of marijuana on him, court
papers said.

Fontaine was charged in Delaware with possession of marijuana, driving
while suspended and driving without a license. Fontaine pleaded guilty
and received a year's probation, according to one of his lawyers,
Kenneth Gaudreau.

Fontaine was charged in Maryland with felonious possession of crack
cocaine, simple possession of cocaine and possession of marijuana. He
was convicted on the felony cocaine charge. The remaining charges were
not prosecuted.

But the appeals court found that because Delmar police brought
Fontaine into Maryland to process him, he could not be charged in
Maryland for the drugs discovered during the search.

"I felt like we were on pretty solid ground," Gaudreau said. "I always
thought it was fairly clear-cut."

Assistant State's Attorney Celia A. Davis said yesterday she would
appeal any reversal of the Maryland conviction, but Gary E. Bair,
chief of the criminal appeals division of the state attorney general's
office, said it "usually it takes a couple of weeks" to make a decision.

Maryland's next step would be the Court of Appeals.

Bair also said Delaware could prosecute Fontaine on the charges
associated with the drugs found during the Maryland search.

Bair said past U.S. Supreme Court decisions have found that "each
state is considered a separate sovereignty," and double jeopardy would
not apply if Fontaine were prosecuted in Delaware on cocaine-related
charges.
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