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Appeals court overturns conviction

February 06, 1998|By MARLO BARNHART

Appeals court overturns conviction

A 20-minute wait for a drug-sniffing dog to show up was long enough to get a Hagerstown man's drug distribution conviction overturned by the Maryland Court of Special Appeals Monday.

Kelly Graham, 31, formerly of the 200 block of Marshall Street, was convicted in Washington County Circuit Court of possession with intent to distribute cocaine. He was sentenced to 5 1/2 years in prison on Oct. 8, 1996, according to court records.

The case began when Maryland State Police Trooper 1st Class Jeffrey Kissner stopped a speeding car on Interstate 81 Feb. 29, 1996.

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Part of a two-car drug interdiction team, Kissner was 20 minutes away from Trooper 1st Class Charles Stanford and Dillon, a drug-sniffing K-9, when the stop was made, court records said.

Graham, a passenger in the car, told Kissner he was the owner of the car. The driver was found to be unlicensed, as was Graham, court records said.

After confirming by radio that the driver was unlicensed, Kissner charged the driver with that offense and told Graham to stay in the car.

Stanford and Dillon were summoned to the scene and arrived 20 minutes later. The dog alerted on Graham and police found 50 vials of cocaine in his pocket, court records said.

Graham unsuccessfully sought to have the cocaine evidence suppressed prior to his trial on the issue of the legality of the search. Judge Frederick C. Wright III ruled on Aug. 27, 1996, that the evidence was admissible.

Graham was convicted by a jury and on Oct. 8, 1996, Judge John H. McDowell sentenced him on the drug charge.

On appeal, the state's second highest court ruled that since there was no reasonable suspicion that Graham had broken any laws, Kissner could not legitimately continue to detain Graham for purposes of a drug scan once the driver had been charged with the traffic offense.

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