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 medical

10
assistance for themselves or are passive recipients of medical assistance because of

another’s actions, under subsection (c). Id. at 165–72. We held that to construe the statute

not to protect passive recipients of medical assistance would be “inconsistent with the

General Assembly’s stated goal of saving lives by encouraging people to call for help”

because a person who suspects that another is overdosing might be deterred from seeking

help by fear of the legal repercussions for the recipient of medical aid. Id. at 172.

This appeal implicates CP § 1-210(c). To qualify for immunity under that

subsection, a defendant must satisfy three elements. First, the person seeking medical

attention must hold a reasonable belief that the subject of the call is “experiencing a

medical emergency after ingesting or using alcohol or drugs.” CP § 1-210(c). Second, the

subject(s) of the call must be arrested, charged, or criminally prosecuted with one of the

enumerated criminal violations. Id. Third, the evidence supporting the arrest, charge, or

criminal prosecution must have been “obtained solely as a result of the person seeking or

receiving medical assistance.” Id. All three of these elements were satisfied here.

A. The 911 Caller Reasonably Believed That Mr. Gerety And
Ms. Antkowiak Were Experiencing A Medical Emergency.

The trial court in this case concluded that Mr. Gerety and Ms. Antkowiak were not

experiencing a medical emergency, both because of the movement of the vehicle after the

911 call was placed and because they declined medical assistance at the scene. On appeal,

Mr. Gerety and Ms. Antkowiak contend that the statute does not require certainty that the

subject of a call for medical assistance is experiencing an overdose, only a reasonable

belief. The State does not argue to the contrary, and we agree that the circuit court

11
focused on the wrong question.

In Noble, 238 Md. App. at 153, we recounted the legislative history of CP § 1-210

in construing subsection (d), and the amendments to subsection (c) of the law we

reviewed in Noble are relevant here. See Md. Nat’l Bank v. Pearce, 329 Md. 602, 619

(1993) (legislative history is persuasive evidence of the meaning of a statute). As

originally enacted in 2014, subsection (c) was more focused on the user, and the language

seemed to require greater certainty about the fact of an emergency:

(c) A person who experiences a medical emergency after
ingesting or using alcohol or drugs shall be immune from
criminal prosecution for a violation of §§ 5-601, 5-619, 10-
114, 10-116, and 10-117 of the Criminal Law Article if the
evidence for the criminal prosecution was obtained solely as a
result of another person’s seeking medical assistance.

2014 Md. Laws, chap. 401. The 2015 amendments to the law broadened the universe of

people entitled to immunity and specifically reduced the trigger from a certain emergency

to a reasonable belief:

(c) A person who experiences 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, and 10-117 of the Criminal Law
Article if the evidence for the criminal arrest, charge, or
prosecution was obtained solely as a result of another
person’s the person seeking or receiving medical assistance.

2015 Md. Laws, chap. 375 (deletions indicated by strikethroughs; additions indicated by

bolding). The Fiscal and Policy Note for the 2015 amendments confirms this intention:

[The amendment] establishes that immunity applies to
situations involving a person who, in good faith provides
medical assistance to another reasonably believed to be

12
 experiencing a medical emergency, or, a person who
reasonably believes that he or she is experiencing a medical
emergency, rather than the current application of immunity to
situations involving a person who is experiencing a medical
emergency.

Dep’t Legis. Servs., Fiscal and Policy Note, S.B. 654, at 1–2 (2015 Session) (emphasis

added). Thus, between 2014 and 2015, the legislature extended immunity to a recipient of

medical assistance, even if they did not suffer a medical emergency, so long as the person

seeking medical attention reasonably believed the recipient was experiencing a drug or

alcohol induced medical emergency. This change encourages drug users and bystanders

alike to call 911 at the first sign of distress without fear that if they are mistaken about the

extent of the emergency, that they could face criminal consequences for minor drug and

alcohol offenses.

That purpose was served here. Charles, a citizen with no apparent connection to

Mr. Gerety or Ms. Antkowiak, called 911 to report his concern that they were passed out

because they were “really high.” Although Charles asked initially for police to respond,

the 911 operator understood this as a medical emergency call and connected Charles with

the fire department. Officer Silva also was dispatched to the scene, but his purpose was to

perform a welfare check, as his notes reflected and as he advised Mr. Gerety and

Ms. Antkowiak. Section 1-210(c) does not require a citizen to evaluate the subject of a

call medically, nor does it require there to be an emergency after all—the statute requires

only that the caller act on a reasonable belief that the subject is experiencing a drug or

alcohol induced medical emergency. That is exactly what happened here and, to its credit,

the State does not contend otherwise.

13
 B. Mr. Gerety And Ms. Antkowiak Were Charged With And Prosecuted
For One Of The Enumerated Crimes.

The criminal violations covered by the immunity provisions of CP § 1-210 are

simple possession of drugs, CR § 5-601; possession of drug paraphernalia, CR §§ 5-619-

20; and crimes related to underage possession of alcohol. CR §§ 10-114, 10-116, & 10-

117. Although Mr. Gerety and Ms. Antkowiak initially were charged with possession

with intent to distribute and conspiracy to distribute cocaine, heroin, fentanyl, and

pregabalin—charges that would not be shielded by the immunity provisions—the State

ultimately elected to proceed on a single count of possession of heroin against each of

them. If CP § 1-210 is otherwise satisfied, then, they were immune from prosecution for

that charge.9

C. The Evidence Supporting The Criminal Prosecution Was Obtained
Solely As A Result Of The Call For Medical Assistance.

The State does not dispute that Mr. Gerety and Ms. Antkowiak, as passive

recipients of a medical assistance initiated by a 911 call for a suspected drug overdose,

were protected persons under CP § 1-210(c). Instead, the State argues that the drugs

seized from the SUV were not “obtained solely as a result” of their receipt of medical

9
And this distinguishes this case from our recent decision in Glanden v. State, ___ Md.
App. ___, Nos. 1114, 1871, 1872, and 1873, Sept. Term 2019 (Feb. 5, 2021). The
defendant in Glanden was convicted of possession with intent to distribute fentanyl, a
charge not immunized under § 1-210(b) or (c). When the State cited the conviction as a
violation of his existing probation, he argued that he was entitled to immunity under (d).
We disagreed, holding that the violation of probation resulted from the non-immunized
conviction, and not “solely as a result” of the request for medical assistance that led
authorities to the scene. Glanden, slip op. at 15–17. But here, we don’t have the
intervening step. The lone possession charge at issue here is indisputably among those
listed in (b) and (c).

14
assistance. (Emphasis added.) In the State’s view, the police searched the vehicle only

after Mr. Gerety was arrested on outstanding warrants, which broke the causal chain

between the 911 call and the evidence supporting the possession charge.10 It analogizes to

the doctrine of attenuation under Fourth Amendment jurisprudence.

The attenuation doctrine permits a court to ask, “whether there exists a strong

enough causal connection between the primary taint [of a Fourth Amendment violation]

and the challenged evidence to require the exclusion of that information.” Myers v. State,

395 Md. 261, 286 (2006). This doctrine, like the inevitable discovery and independent

source doctrines, permits the government to purge the taint of unlawful police conduct

and avoid the harsh impact of the exclusionary rule. See Miles v. State, 365 Md. 488,

520–21 (2001). These doctrines “balance[e] the protections of the Fourth Amendment

with the need for effective law enforcement . . . .” Id. at 520.

The problem with the State’s argument is that there is no Fourth Amendment taint

here to be purged. All else being equal, Mr. Gerety’s outstanding warrants would have

allowed the officers to arrest him and search him and the vehicle incident to arrest. But

unlike the exclusionary rule, which bars the State from introducing evidence seized in a

10
As mentioned, a variant of this argument was raised by the State in the trial court, but
was not a basis of the court’s ruling that Mr. Gerety and Ms. Antkowiak were not
immunized by CP § 1-210. We may, of course, affirm the trial court’s ruling on any basis
adequately supported by the record. See, e.g., Elliott v. State, 417 Md. 413, 435 (2010)
(“Where the record in a case adequately demonstrates that the decision of the trial court
was correct, although on a ground not relied upon by the trial court and perhaps not even
raised by the parties, an appellate court will affirm.” (quoting Robeson v. State, 285 Md.
498, 502 (1979)). Because the court did not rule on this basis, however, Mr. Gerety and
Ms. Antkowiak did not address this argument in their brief in this Court.

15
manner that violates the Fourth Amendment (and without regard to the seriousness of the

crime), the immunity provisions of CP § 1-210 apply to minor charges supported by

evidence obtained solely as a result of a call for medical assistance. Put another way, § 1-

210 asks a different question: why were officers at the scene in the first place? If they

were there solely as a result of a call for emergency medical assistance, the caller and

recipient(s) of assistance are immune from prosecution for the listed charges, whatever

evidence might properly have been seized.

Section 1-210 is not a “get-out-of-jail free card.” Noble, 238 Md. App. at 168

(quoting Hearing on H.B. 416 Before the H. Judiciary Comm., 2014 Reg. Sess. (Feb. 11,

2014)). The legislature struck a balance between prosecuting minor drug crimes and

encouraging reporting of suspected overdoses. Section 1-210 does not prohibit police

from conducting searches and seizures of evidence—to the contrary, it anticipates that

evidence will be seized as officers and medical professionals arrive at the scene and

deliver medical care.11 If they find evidence that supports charges not covered by the

11
The legislature also anticipated that outstanding warrants would be discovered and
executed during emergency medical calls governed by CP § 1-210. As originally
proposed, House Bill 416 would have prohibited the police from arresting a person on an
outstanding warrant discovered during drug and alcohol related medical calls. See House
Bill 416 (2014), first reader. The provision that ultimately became subsection (c) then
stated:

(B) A person who experiences an alcohol – or a drug-related
overdose and is in need of medical assistance
(1) Shall be immune from criminal prosecution for a
violation of §§ 5-601, 5-619, 10-116, and 10-117 of
the Criminal Law Article if the evidence for the
(Continued…)

16
immunity provisions of § 1-210, compare Glanden, ___ Md. App. at ___, slip op. at 15–

17, officers are free to arrest on and prosecute those charges in the normal course. If, as in

Glanden, the discovery included a quantity of controlled dangerous substances consistent

with the intent to distribute or drug paraphernalia consistent with distribution, § 1-210

wouldn’t affect the case. But where, as here, the evidence seized supports only charges

enumerated in § 1-210, the limited immunity provisions apply so long as the evidence

was “obtained solely as a result of the person seeking or receiving medical assistance.”

The State’s argument here would require us to create a back-door judicial

exception to the statutory scheme. But it would be inconsistent with the balance the

General Assembly struck to allow an after-the-fact justification for the charges when

officers were on the scene, and thus in a position to check Mr. Gerety’s outstanding

warrants, “solely as a result” of a call for medical assistance. Evidence routinely will be

(…continued)
criminal prosecution was obtained solely as a result of
the person’s seeking medical assistance; and

(2) May not be detained on or prosecuted in
connection with an outstanding warrant for another
nonviolent crime if the person’s seeking medical
assistance is the reason for the person’s encounter
with law enforcement.

Id. (emphasis added). The Maryland State’s Attorneys’ Association opposed that
provision, however, and it was deleted as part of the amendments made before the bill
received a favorable report from the House Judiciary Committee. See Hearing on H.B.
416 Before the H. Judiciary Comm., 2014 Reg. Sess. (Feb. 11, 2014); House Bill 416
(2014), third reader (striking out the outstanding warrant provision). The language
pertaining to the discovery of evidence during a medical response call under CP § 1-210
remained unchanged and was not the subject of debate.

17
“obtained” during medical response calls. Police may, as here, seek consent to search,

may conduct a search incident to arrest on charges not covered by the immunity

provisions, may see evidence in plain view, or, as here, conduct a search after executing

an outstanding warrant discovered during a routine identification check. In each scenario,

the evidence would be lawfully obtained through means arguably independent of anyone

seeking or receiving medical assistance. But allowing charges for the listed offenses

under those circumstances would eviscerate the immunity provisions of CP § 1-210 and

defeat the overarching purpose of encouraging people to report suspected overdoses.

And indeed, if the General Assembly had intended to limit immunity in cases

where evidence was seized in a search incident to arrest or other independent means

during a response to a call for medical assistance, it could have done so. The statutes in at

least four states—Illinois,12 Minnesota, Pennsylvania, and Vermont—specify that charges

arising from evidence obtained through an independent source fall outside the immunity

protections under their Good Samaritan statutes.13 See 720 Ill. Comp. Stat. Ann.

§ 570/414 (limited immunity does not apply “if law enforcement has reasonable

12
An Illinois appellate court interpreted the independent source exception narrowly in
People v. Markham, 126 N.E.3d 759, 764 (Ill. App. Ct. 2019) (reasoning that heroin
discovered in a defendant’s wallet after he had been administered Naloxone inside a
residence was obtained “as a result” of the call for medical assistance even though the
defendant asked the police to retrieve his wallet for him because to construe the statute
otherwise would eviscerate the purpose the statute).
13
Although the Minnesota statute was enacted the same year as CP § 1-210 and the
Pennsylvania statute followed passage of the Maryland bill, the Illinois and Vermont
statutes preceded our Good Samaritan statute and were referenced in “Exhibit 2” to the
Fiscal and Policy Note, summarizing common characteristics of statutes around the
nation. See Dep’t Legis. Servs., Fiscal and Policy Note, H.B. 416, at 6 (2014 Session).

18
suspicion or probable cause to detain, arrest, or search the person described in subsection

(b) or (c) of this Section for criminal activity and the reasonable suspicion or probable

cause is based on information obtained prior to or independent of the individual described

in subsection (b) or (c) taking action to seek or obtain emergency medical assistance and

not obtained as a direct result of the action of seeking or obtaining emergency medical

assistance”) (emphasis added); Minn. Stat. Ann. § 604A.05 (limited immunity statute

does not “preclude prosecution of a person on the basis of evidence obtained from an

independent source”) (emphasis added); 35 Pa. Stat. Ann. § 780-113.7 (statute does not

“bar charging or prosecuting a person for offenses enumerated in subsection (b) if a law

enforcement officer obtains information prior to or independent of the action of seeking

or obtaining emergency assistance as described in subsection (a)”) (emphasis added); Vt.

Stat. Ann. tit. 18, § 4254 (statute does not “preclude prosecution of the person on the

basis of evidence obtained from an independent source”) (emphasis added). It didn’t.

When determining whether evidence was obtained “solely as a result” of a call for

medical assistance, then, CP § 1-210 requires courts to focus solely on the reason officers

are at the scene at all. If officers are only at a scene because someone called for medical

assistance, evidence supporting the enumerated charges would not have been discovered

but for the presence of law enforcement related to a report of a drug or alcohol related

medical emergency, and the caller and anyone receiving medical services are entitled to

limited immunity. If the police were present for reasons other than a call for medical

assistance, evidence found would not be obtained “solely as a result” of the medical

19
call.14 CP § 1-210(c) (emphasis added).

That is exactly what happened here. Officer Silva went to the Checkers in

Linthicum Heights “solely” because a bystander called 911 to report concerns that

Mr. Gerety and Ms. Antkowiak were “really high” and appeared to be unconscious in a

vehicle. Officer Silva’s execution of the medical welfare check was the only reason he

noticed that Mr. Gerety was under the influence of drugs and was behaving nervously,

which was the justification for the request for identification that led to the discovery of

the outstanding warrants. Mr. Gerety and Ms. Antkowiak were protected persons under

CP § 1-210(c) because they were the subject of a call for medical assistance for a

suspected opioid overdose. The heroin seized from the SUV in which they were found

was obtained solely because the police were called to the scene to check on their welfare.

They were immune from prosecution for possession of heroin, and we reverse their

convictions.

JUDGMENTS OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
REVERSED. COSTS TO BE PAID BY
ANNE ARUNDEL COUNTY.

14
Virginia makes explicit in its Good Samaritan statute that if the request for medical
assistance is made during the execution of a search warrant or during an arrest, the
immunity provisions don’t apply. See Va. Code Ann. § 18.2-251.03.C (immunity
protections do not apply “to any person who seeks or obtains emergency medical
attention for himself or another individual, or to a person experiencing an overdose when
another individual seeks or obtains emergency medical attention for him, during the
execution of a search warrant or during the conduct of a lawful search or a lawful
arrest”) (emphasis added).

20