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In Re: Darryl P.

March 25, 2013


The opinion of the court was delivered by: Moylan, J.


Kehoe, Watts, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

Opinion by Moylan, J.

This appeal raises a single contention. An analysis of that contention, however, implicates enough issues to justify a semester of law school. It is, in a phrase, Hydra-headed. The opinion turns out to be a study of differences. There is a potentially critical difference between an unlawful arrest and an unconstitutional arrest. There is a difference between a federal violation and a state violation. Even at the state level, there is a significant difference between a constitutional violation and a sub-constitutional violation. An analysis of these differences is necessary to identify the trigger for the Exclusionary Rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). An analysis of these differences may be necessary to mark the threshold for the "Fruit of the Poisonous Tree" Doctrine.

There is a vast difference between the influence on confession law of the Sixth Amendment right to counsel, and the Fifth Amendment privilege against compelled self- incrimination. There is a difference between the constitutional right to counsel under Massiah and the prophylactic right to counsel under Miranda. There is a difference between the respective triggers of formal accusation and of custodial interrogation, just as there is a difference between the respective coverages that are triggered. There is a difference in how separate rights to counsel are invoked. There is a difference in how separate rights to counsel are waived.

There may (or may not) be a difference between an involuntary confession under the Fifth Amendment privilege according to Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897), and an involuntary confession under the Maryland common law according to Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979). There may, on the other hand, be a venerable but long-neglected identity between the two. Hof v. State, 97 Md. App. 242, 629 A.2d 1251 (1993), aff'd on other grounds, 337 Md. 581, 655 A.2d 370 (1995). A sure sense of these differences is necessary in a case, such as this, where separate constitutional protections cover the same territory. Litigants too often confront us with a constitutional kaleidoscope, and constitutional overlap can quickly degenerate into constitutional chaos. It does not help to have a Sixth Amendment factor intruding into a Fifth Amendment analysis. It does not help to have a Fifth Amendment factor intruding into a Sixth Amendment analysis. It does not help to have the whole case put in a Fourth Amendment framework of analysis when the Fourth Amendment is not even involved. It is important to keep our analyses in watertight compartments. As the appellant looses his blunderbuss blast at the non-suppression of his confession, however, his grievances are far from being neatly compartmentalized. To mix metaphors, we face the daunting task of trying to unscramble the eggs.

The Present Case

In the Circuit Court for St. Mary's County, sitting as a juvenile court, the appellant, Darryl P., was, upon an agreed statement of facts, found to be a delinquent for having been involved in an attempted murder. The appellant, then aged 17, was charged with having been involved in the January 6, 2011 shooting of Terrell Swales during an attempted robbery.

The convoluted procedural background throws little light on the single contention raised by the appellant, to wit, that at a pretrial suppression hearing, the judge erroneously ruled that an inculpatory statement given by him to the police was admissible in evidence.

The appellant was originally charged, as an adult, with first and second degree assault and with the use of a handgun. The appellant turned himself in on a warrant that had been issued by the District Court of Maryland for St. Mary's County. On February 23, 2011, the appellant was released on $10,000 bail. When interviewed by a deputy sheriff on that occasion, the appellant invoked his right to counsel and all questioning ceased. While his case was still pending in the District Court, the appellant retained counsel and counsel entered his appearance. The appellant was free on bail from February 23, 2011 until he was rearrested on May 6, 2011.

The rearrest was on the basis of an indictment returned by the Grand Jury for St. Mary's County on April 6, 2011, charging the original crimes charged in the District Court warrant as well as several additional charges based on the same criminal conduct. The arrest warrant itself was issued by the circuit court on April 15, 2011. On October 11, 2011, jurisdiction over the appellant's case was waived from the criminal court to the juvenile court.

After jurisdiction had been waived to the juvenile court, the appellant filed, on October 19, 2011, a motion to suppress an inculpatory oral statement he had made to the police following his rearrest on May 6. A suppression hearing was conducted on November 17. On November 29, the suppression hearing judge filed a 14-page Opinion and Order of Court in which he denied the motion to suppress.

Except to explain how the appellant came to be the appellant, this procedural history is largely immaterial. The appellant challenges the admissibility of the inculpatory remarks he made to the police. Whether used to find an adult to be guilty of crime or a juvenile to be delinquent, the confession will be assessed by the same standards.

The Five Subcontentions

The appellant raises a single contention, but in arguing that contention he lays down a broad enfilade of subcontentions. In appellant's brief there are even bald allegations invoking no less than three separate articles of the Maryland Declaration of Rights. Somewhat more modestly, five subcontentions were actually raised and argued at the suppression hearing and are, therefore, proper grist for the appellate mill. We have reordered their sequence to make for a more fluid analysis:

1. The questioning of the appellant on the early morning of May 6, 2011

followed his "unlawful arrest" and is, therefore, suppressible under the "fruit of the poisonous tree" doctrine;

2. The statement was taken in violation of his prophylactic right to counsel as protected by Edwards v. Arizona;

3. The statement was taken in violation of the appellant's Fifth

Amendment privilege against compelled self-incrimination;

4. The statement was involuntary according to the Maryland common law; and

5. The statement was taken in violation of the appellant's Sixth

Amendment right to the assistance of counsel.

Arrest, Rearrest, and Bail

The appellant's thesis is that at a time when he was already free on bail and had a right to be free of any further custodial restraint, he was erroneously rearrested and that the confession in issue followed as a proximate result of that improper rearrest. It follows, the appellant argues, that the confession should have been suppressed as "the fruit of the poisoned tree." On this subcontention, the appellant may well be right that the court system stumbled in failing to afford him all the liberty that he was entitled to as a result of his bail status. Whether the judicial machinery performed well or ill, however, the possible bureaucratic misstep is, as a reason for suppressing evidence of crime, a tempest in a teapot. Even be it in a teapot, however, the tempest is worthy of assessment.

To make such an assessment, however, it would be helpful if we could thoroughly understand the early history of the appellant's prosecution. That history, however, is frustratingly opaque. We now know, as a result of reviewing the agreed statement of facts that was read to the juvenile court on December 28, 2011, that the underlying crime in this case occurred on January 6, 2011, when the appellant, in the course of an attempted robbery, shot and wounded Terrell Swales. That statement of facts was not presented at the suppression hearing, however, and the suppression hearing court was not informed of what the underlying crime consisted. If we should ultimately be called upon to decide, on the basis of this subcontention, whether the court was right or wrong in declining to suppress the confession, we would have to factor out our knowledge about the circumstances of the underlying crime because our review of the suppression hearing would be limited to what was actually presented to the suppression hearing. On the other hand, there was a file folder in front of the suppression hearing judge, but we are not told what was in that file folder.

At some subsequent time, we infer from allegations in the appellant's brief and not from any evidence presented at the suppression hearing, the police obtained an arrest warrant for the appellant from the District Court, charging him with 1) first-degree assault, 2) second- degree assault, and 3) the use of a handgun in a crime of violence.*fn1 The record in this case does not contain that arrest warrant and it was not presented at the suppression hearing.

According to counsel, the appellant then "turned himself in" on those charges. How the appellant learned about those charges against him we don't know. Did the appellant, as a seventeen-year-old, turn himself in of his own accord or did his parents bring him in or did a lawyer or friend bring him in? We don't know. Did the appellant turn himself in to the police, or to the State's Attorney's Office, or to the District Court? Again, we don't know. We are told by counsel that, apparently on February 23, 2011, "[a]ppellant posted a $10,000 bail and was released."*fn2

Had the appellant been arrested for a short time after turning himself in or did he have an immediate bail hearing?*fn3 Was there a condition on the ultimate bail bond that the appellant not leave the state? Was there an actual bail hearing at which the nature of the original crime was at least briefly described? We are told none of this and neither was the suppression court. There is no transcript in the record of any such bail hearing. Counsel does tell us that "while his case was still in District Court, the appellant retained counsel, who entered his appearance in the District Court case"*fn4 and further that the "appellant was free on bail from 23 February 2011 until he was rearrested on the 6th of May 2011." The State does not take issue with these factual allegations.

As to what progress the case was making or what progress the investigation was making during that 10-week interim, we are told nothing. As to whether the appellant's lawyer was in contact with the police or in contact with the State's Attorney's Office during that time, we don't know. All we are told is that on April 6, 2011 the Grand Jury handed down an indictment against the appellant based on his alleged criminal actions on January 6, 2011. An analysis of one aspect of the appellant's subcontention calls for us to make a comparison of the original District Court charges with the charges in the April 6, 2011 indictment. The record, however, contains no copy of the indictment nor was it summarized in any specific terms at the suppression hearing.

From the tell-tale format and language of the charging document used at the juvenile delinquency adjudicatory hearing, however, we may infer the specific charges that the indictment probably contained. The juvenile charging document, however, was neither offered in evidence nor referred to at the suppression hearing. The appellant's brief simply states the unilluminating generality that the "indictment included additional charges related to that same offense." The Opinion and Order of the Court recited that the "indictment which led to Respondent's later arrest came from the Circuit Court and included a variety of new charges." What we now know is that the delinquency petition was drawn in seven counts, charging 1) attempted armed robbery, 2) attempted simple robbery, 3) first-degree assault, 4) second-degree assault, 5) reckless endangerment, 6) conspiracy to commit armed robbery, and 7) the use of a handgun. Each count referred to the attack on Terrell Swales on January 6, 2011. Counts 3, 4, and 7 repeated the counts that had been charged before the District Court. Counts 1, 2, 5, and 6 were new. We will assume that the indictment of April 6, 2011 made the same charges.

We are also told, in the briefs by both parties, that an arrest warrant for the appellant based on the April 6, 2011 indictment was issued on April 15, 2011. For both of these dates, both parties rely not on anything found in the transcript of the suppression hearing but on the Maryland Judiciary Case Search website. The April 15 date for the issuing of the arrest warrant raises, for us at least, several additional questions. Is an indictment-based arrest warrant issued automatically along with the indictment? If it is, that would not pose a problem, because the Supreme Court in Gerstein v. Pugh, 420 U.S. 103, 119 n.19, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), made it clear that such a procedure does not offend the Fourth Amendment:

[T]he Court has held that an indictment, "fair upon its face," and returned by a "properly constituted grand jury," conclusively determines the existence of probable cause and requires issuance of an arrest warrant without further inquiry. Ex parte United States, 287 U.S. 241, 250 (1932). See also Giodenello v. United States, 357 U.S. 480, 487 (1958). The willingness to let a grand jury's judgment substitute for that of a neutral and detached magistrate is attributable to the grand jury's relationship to the courts and its historical role of protecting individuals from unjust prosecution. See United States v. Calandra, 414 U.S. 338, 342-46 (1947). (Emphasis supplied).

If automatically issued, however, why would not the arrest warrant have been issued on the same day that the indictment itself was filed? Why a 9-day delay? Or is it the case, in St. Mary's County at least, that the issuance of the arrest warrant requires an actual application by the police or by the State's Attorney's Office to a warrant-issuing judge? If that be the case, why, during that 9-day interim, was not the appellant or the appellant's lawyer of record notified of the indictment and given the opportunity to come in and explain to the court or to the State's Attorney's Office (whether the explanation ultimately sufficed or not) that the appellant had already been placed on bail for that same offense? Above and beyond that query, moreover, what happened to the arrest warrant for the next three weeks, between April 15 and May 6 when it was finally served? Presumably the police knew where the appellant lived. They knew where the appellant's mother, who had posted the bond, lived.

It is the appellant's position that the second arrest warrant, that of April 15, 2011, should never have issued because the appellant had already been permitted bail by the District Court on February 23, 2011, for the same offense, and that that original bail should have continued to guarantee his court appearance. The appellant relies on several Maryland Rules of Procedure and one statutory provision that touch upon the bail question, when a defendant appears first before the District Court and makes bail and is subsequently before the circuit court on the same or substantially similar charges. A simple movement of the identical case from District to circuit court would seem to be covered by Maryland Rule 4-216.1(b):

(b) Continuance of previous conditions. When conditions of pretrial release have been previously imposed in the District Court, the conditions continue in the circuit court unless amended or revoked pursuant to section (c) of this Rule.

Should the filing of an indictment or a criminal information have been the cause for the movement of the case upward to the circuit court, the conditions of pre-trial release may be amended, but certain procedural restrictions are attached. Maryland Rule 4-216.1(c) covers that situation:

(c) Amendment of pretrial release order. After a charging document has been filed, the court, on motion of any party or on its own initiative and after notice and opportunity for hearing, may revoke an order of pretrial release or amend it to impose additional or different conditions of release. If its decision results in the detention of the defendant, the court shall state the reasons for its action in writing or on the record. A judge may alter conditions set by a commissioner or another judge.

(Emphasis supplied).

With specific reference to those occasions when the State's Attorney wants an arrest warrant to be issued along with an indictment, Maryland Rule 4-212(d)(2) provides:

Upon the request of the State's Attorney, the court may order issuance of a warrant, ... if an indictment has been filed against the defendant; and (A) the defendant has not been processed and released pursuant to Rule 4-216 or 4- 216.1, or (B) the court finds there is a substantial likelihood that the defendant will not respond to a summons.*fn5 ... Unless the court finds that there is a substantial likelihood that the defendant will not respond to a criminal summons, the court shall not order issuance of a warrant for a defendant who has been processed and released pursuant to Rule 4-216 or 4-216.1 if the circuit court charging document is based on the same alleged acts or transactions.

(Emphasis supplied).

Maryland Code, Criminal Procedure Article, Section 5-206 reflects the legislative attitude toward the continuity of the bail determination when "a new charging document" is based on "the substantially same set of facts":

§ 5-206. Reinstatement of bail after discharge at preliminary hearing. In a criminal case, a judge may reinstate any bail, bond, or recognizance for criminal charges discharged at a preliminary hearing in the District Court, if a new charging document arises out of the substantially same set of facts.

(Emphasis supplied).

In the nine-day period between the filing of the indictment and the issuance of the arrest warrant, there was no notice of anything to the appellant or to the appellant's counsel. There was no opportunity for a hearing. The State responds that the papers from the District Court did not arrive at the circuit court until April 21, 2011, six days after the arrest warrant was issued. The State asserts that the warrant-issuing judge was, therefore, unaware that bail had already been posted in the District Court. Though that may be the case, that does not negate the self-evident fact that the State's Attorney's Office, which presumably applied for the arrest warrant and which unquestionably prepared the indictment and obtained the indictment, knew full well about the appellant's bail status. The ignorance excuse won't fly.

The suppression hearing court, however, gave this "illegal arrest" argument based on non-compliance with the Rules of Procedure short shrift:

Respondent first attacks the arrest as illegal under Maryland Rule 4- 216(g) and (h) [now Rule 4-216.1(b) and (c)], and argues that as such, the statement is fruit of the poisonous tree. Maryland Rule 4-216(g) provides that "[w]hen conditions of pretrial release have been previously imposed in the District Court, the conditions continue in the circuit court unless amended or revoked pursuant to section (h) of this Rule." In this case, the release conditions previously imposed related to the subset of counts that were charged in the District Court. The indictment which led to Respondent's later arrest came from the Circuit Court and included a variety of new charges. The Court finds that the rule cited does apply to situations where a case is transferred from the District Court to the Circuit Court, but does not apply to Respondent's present situation, in which a separate indictment, alleging new offenses, was later issued by the Circuit Court. For this reason, Respondent's argument does not avail.

(Emphasis supplied).

We cannot agree, however, that, because the sets of charges against the appellant in the indictment and the original charges against the appellant in the District Court were not identical, the rules controlling the continuance or discontinuance of bail do not apply. All parties agree that both sets of charges arose out of precisely the same criminal incident of January 6, 2011. There was no new information about that crime available on April 6, 2011 that was not already known on February 16, 2011. Rule 4-212(d)(2) explicitly states that, after indictment, "the court shall not order the issuance of a warrant for a defendant" who has already been "processed and released" by the District Court if the new "charging document is based on the same alleged acts or transactions." (Emphasis supplied). The sameness that is the critical criterion inheres not in the charges themselves but in the underlying "acts or transactions" that give rise to the charges. Criminal Procedure Article, Section 5-206 is emphatically clear that the continuity of the bail status may rest upon the fact that the "new charging document arises out of the substantially same set of facts." (Emphasis supplied).

That two sets of charges must arise out of "the substantially same set of facts" is by no means a statement that the two sets of charges must be identical.*fn6 An indictment will always be more complex than the initial charges made by an officer in the immediate wake of a crime. An officer on the scene is not a legally trained strategist. An indictment, by contrast, is a carefully designed and frequently pre-fabricated product of a State's Attorney's Office's strategic pleading experience. With multi-count thoroughness, it will cover every conceivable crime that a given set of facts could possibly produce, frequently with significant overlap and deliberate redundancy. It will rarely be identical with the original charges, but it will nonetheless arise out of the same facts. We cannot agree that the controlling rules affecting bail do not apply because the sets of charges were not identical. The difference between the two sets of charges in this case was simply the difference between the first draft and a finished product.

The appellant may well win this tempest or battle in the teapot, however, without necessarily winning the larger war. To pick up on the metaphor on which the appellant rests this entire subcontention, he blithely assumes that a violation of Maryland Rule 4-212(d)(2), for instance, is what Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939), first called "a poisonous tree." That is by no means the case.

The Fourth Amendment Is Not Involved

We hold that all evidence obtained by searches and seizures in violation of the Constitution is ... inadmissible in a state court.

... Mapp v. Ohio (1961)

The ultimate issue - the only issue - before us is that of whether the appellant's confession should be excluded from evidence. Ordinarily, evidence is admissible if it is competent, relevant, and material; that is, if it will assist the fact finder in the search for truth. On rare occasions, if there is broad societal disapproval of the means by which the evidence was procured, the evidence may be excluded, but only by means of some exclusionary rule expressly created to apply to such a circumstance. For the allegedly improper arrest and detention the appellant complains of in this case, there is only one exclusionary rule the appellant could conceivably call upon. That is the Exclusionary Rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). For the last 52 years, it has been available to redress violations of the federal Fourth Amendment in criminal trials in state courts. The appellant, however, must qualify for access to Mapp.

The Exclusionary Rule of Mapp is not a generic remedy to cure every imaginable wrong. The Exclusionary Rule is reserved for the redress of violations of the federal Fourth Amendment and for nothing else. It is not concerned with violations even of state constitutions. A fortiori, it is not concerned with sub-constitutional violations, such as violations of state statutes or of state rules of court. The appellant does not suggest that he is relying upon anything other than the Exclusionary Rule of Mapp, but neither does he address his entitlement to Mapp. He seems to take that for granted. He may not.

A. A Violation of State Law Is Not a Fourth Amendment Violation

Virginia v. Moore, 553 U.S. 164, 166, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008), posed the issue (the very issue now before us) at the outset of the 9-0 opinion of the Court:

We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law.

(Emphasis supplied).

In that case, Portsmouth, Virginia police officers stopped a car driven by Moore. When the officers determined that Moore's driver's license had been suspended, they arrested him for the misdemeanor of driving on a suspended license. As an incident of that custodial arrest, the officers searched him and recovered 16 grams of crack cocaine and $516 in cash from Moore's person. 553 U.S. at 166-67. As a matter of law, however, that custodial arrest was an unlawful arrest according to the statutory law of Virginia. Justice Scalia's opinion summarized the Virginia law:

Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who "fail or refuse to discontinue" the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others.

553 U.S. at 167 (emphasis supplied).

Because Virginia law, like Maryland law, "does not, as a general matter, require suppression of evidence obtained in violation of state law," id., it was necessary for Moore to seek succor in the federal Fourth Amendment. Because the physical evidence was unquestionably the result (or "fruit") of his unlawful arrest, "Moore argued ... that suppression was required by the Fourth Amendment." 553 U.S. at 168. A panel of Virginia's intermediate appellate court agreed with Moore's Fourth Amendment argument, as ultimately did the Virginia Supreme Court.

The Court reasoned that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to a citation, the arrest search violated the Fourth Amendment.

Id. (emphasis supplied).

B. An Important Semantic Distinction

The United States Supreme Court reversed the Supreme Court of Virginia. Before turning to its analysis, however, it behooves us to make the critical semantic distinction between an "unlawful arrest" according to state law and an "unlawful arrest" pursuant to the Fourth Amendment. It would be helpful, of course, if people would always refer to the latter not simply as an "unlawful arrest" but as an "unconstitutional arrest." Unfortunately, people do not always talk or write with such precision, and it remains tempting for zealous advocates to take the phrase "unlawful arrest" out of its less significant state context and to use it in a context wherein it may hopefully be given deeper constitutional significance. The Supreme Court, referring to its use of the phrase "lawful arrest" in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), explained in Virginia v. Moore that when it had earlier used the phrase "lawful arrest," it was using it exclusively in the constitutional sense.

[W]e have equated a lawful arrest with an arrest based on probable cause: "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. ... [I]t is not surprising that States have used "lawful" as shorthand for compliance with state law, while our constitutional decision in Robinson used "lawful" as shorthand for compliance with constitutional constraints.

553 U.S. at 177 (emphasis supplied).

C. The Core Concern of Probable Cause

Keeping that important semantic distinction in mind, we return to the analysis in Virginia v. Moore. The Virginia v. Moore opinion made it emphatically clear that an arrest based on probable cause to believe that the arrestee committed the crime for which he is being arrested is a reasonable seizure of the person under the Fourth Amendment and that no further constitutional justification is required.

In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.

553 U.S. at 171 (emphasis supplied).

Quoting its earlier opinion in Michigan v. De Fillippo, 443 U.S. 31, 36, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), Virginia v. Moore reaffirmed that a warrantless arrest satisfies the Constitution so long as the officer has "probable cause to believe that the suspect has committed an offense." ... Neither Di Re [United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948)] nor the cases following it held that violations of state arrest law are also violations of the Fourth Amendment, and our more recent decisions, discussed above, have indicated that when States go above the Fourth Amendment minimum, the Constitution's protections concerning search and seizure remain the same.

553 U.S. at 173 (emphasis supplied).

D. Statutory Violations, State and Federal, Are Sub-Constitutional

Just as the violation of a state arrest statute is not unconstitutional per se, neither is a violation of a federal arrest statute.

None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest.

553 U.S. at 169 (emphasis supplied).

In a series of landmark decisions over four decades, the Supreme Court has declined to treat violations of state law as violations of the Fourth Amendment and as a basis, therefore, for applying the Exclusionary Rule of Mapp v. Ohio:

Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we have said, remained free "to impose higher standards on searches and seizures than required by the Federal Constitution," id. at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law.

In California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988), we held that search of an individual's garbage forbidden by California's Constitution was not forbidden by the Fourth Amendment. "[W]hether or not a search is reasonable within the meaning of the Fourth Amendment," we said, has never "depend[ed] on the law of the particular State in which the search occurs." Id. at 43. While "[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution," id., state law did not alter the content of the Fourth Amendment.

We have applied the same principle in the seizure context. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought it obvious that the Fourth Amendment's meaning did not change with local law enforcement practices - even practices set by rule. While those practices "vary from place to place and from time to time," Fourth Amendment protections are not "so variable" and cannot "be made to turn upon such trivialities." Id. at 815.

553 U.S. at 171-72 (emphasis supplied).

E. The Arrest Sub Judice Passed Constitutional Muster

The arrest of the appellant in this case was indisputably based on probable cause to believe that he had committed the offenses charged on January 6, 2011. That probable cause was established 1) by the arrest warrant issued on February 16, 2011; 2) confirmed by the bail hearing on February 23, 2011; 3) reconfirmed by the Grand Jury indictment filed on April 6, 2011, Gerstein v. Pugh, 420 U.S. at 119 n.19; and 4) confirmed again by the arrest warrant issued on April 15, 2011. The Fourth Amendment requires nothing more. Neither a Maryland statute nor rule of procedure can render unconstitutional what the Fourth Amendment deems to be constitutional.

A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive one unreasonable and hence unconstitutional.

553 U.S. at 174.

F. Maryland Has No Exclusionary Rule

Even if, arguendo, the appellant had shown a violation of Article 26 of the Maryland Declaration of Rights (he has not), there would be no exclusionary rule available to him for such a violation. The only exclusionary device that the appellant could possibly invoke is the Exclusionary Rule of Mapp v. Ohio and that Rule applies only to violations of the federal Fourth Amendment. Maryland has no exclusionary rule of its own.

In Belton v. State, 228 Md. 17, 20-22, 178 A.2d 409 (1962), the Court of Appeals explained that Maryland had never excluded evidence of crime based on the methods by which the evidence had been obtained and that, following June 19, 1961, Maryland did so only under the constitutional compulsion of Mapp v. Ohio. In Brown v. State, 397 Md. 89, 98, 916 A.2d 245 (2007), Judge Raker wrote for the Court of Appeals:

Although the alleged conduct may also violate the Maryland Declaration of Rights, because there is no general exclusionary provision in Maryland for such violations, the conduct must violate the federal Constitution to be excluded.

(Emphasis supplied). See also Fitzgerald v. State, 384 Md. 484, 507, 864 A.2d 1006 (2004) ("Fitzgerald acknowledges our precedent declining to recognize an exclusionary rule under our Declaration of Rights."); Chu v. Anne Arundel County, 311 Md. 673, 676-86, 537 A.2d 250 (1988) (The Court thoroughly reviewed the history of federal exclusionary principles and their rejection in Maryland, pointing out particularly how the Maryland General Assembly, in enacting Chapter 74 of the Acts of 1958, rejected a proposed exclusionary rule for violations of Maryland's search warrant statute.).

In Miller v. State, 151 Md. App. 235, 824 A.2d 1017, cert. denied, 377 Md. 113, 832 A.2d 205 (2003), this Court was dealing with a suppression claim based on an allegedly unlawful arrest. In rejecting the claim, Judge (now Chief Judge) Krauser wrote for this Court:

But even if the officers did not have authority under § 2-102 of the Maryland Criminal Procedure Article to arrest appellant, the court had no legal basis upon which to suppress the evidence obtained from that arrest. Maryland does not have an independent exclusionary rule nor does § 2-102 create one.

151 Md. App. at 246 (emphasis supplied).

In Padilla v. State, 180 Md. App. 210, 232, 949 A.2d 68 (2008), this Court pointed out specifically that there is no exclusionary rule for a violation of Article 26 of the Maryland Declaration of Rights:

Even if we were to hold that the dog scan in the instant case violated Article 26, appellant's claim would fail. This is because no exclusionary rule exists for a violation of Article 26.

(Emphasis supplied). The opinion traced the history of Maryland's rejection of the exclusionary principle to the Court of Appeals's decision in Meisinger v. State, 155 Md. 195, 141 A. 536 (1928).

In the period before Mapp, Maryland courts repeatedly rejected the notion of an exclusionary rule based on Article 26, instead adhering to the rule that "when evidence offered in a criminal trial is otherwise admissible, it will not be rejected because of the manner of its obtention." Meisinger v. State (1928). See also Lambert v. State (1950); Marshall v. State (1943); Lawrence v. State (1906).

(Emphasis supplied).

In tracing the history, the Padilla opinion pointed out that Maryland's rejection of an exclusionary rule was by no means aberrational:

In reaffirming Lawrence, the Meisinger Court also noted that its view was "supported and fortified by the weight of authority elsewhere." In Wolf [v. Colorado (1949)], the Supreme Court cited Meisinger to place Maryland in the company of twenty-nine other states that, after Weeks, had evaluated the admissibility of evidence obtained by unlawful search and seizure and rejected the Weeks exclusionary rule as a matter of state law.

180 Md. App. at 235-36 (emphasis supplied). Indeed, Meisinger itself had held, 155 Md. at 199:

[T]he Court is not concerned with the collateral question of how such evidence may have been procured. The question of the guilt or innocence of the accused cannot be affected by its method of procurement, if the evidence offered is in itself germane and pertinent to the issue to be decided.

(Emphasis supplied).

As recently as Ford v. State, 184 Md. App. 535, 568, 967 A.2d 210 (2009), Judge Salmon stated for this Court:

The common law in Maryland is that this State does not recognize (in criminal cases) an exclusionary rule when physical evidence is illegally seized by the police.

(Emphasis supplied).

In Howell v. State, 60 Md. App. 463, 468 n.2, 483 A.2d 780 (1984), the Court of Special Appeals did not mince its words:

Maryland, of course, has no exclusionary rule. Following the lead of Judge Cardozo in People v. Defore (1926), Maryland is one of the approximately thirty jurisdictions that affirmatively rejected the exclusionary rule.

(Emphasis supplied).

The only exclusionary rule extant in Maryland is that of Mapp v. Ohio. In that regard, Fitzgerald v. State, 153 Md. App. 601, 682 n.4, 837 A.2d 989 (2003), aff'd, 384 Md. 484, 864 A.2d 1006 (2004), observed:

Maryland has no independent exclusionary rule for physical evidence. Maryland has always been among the overwhelming majority of American states that have, on balance, opted against an exclusionary rule for search and seizure violations. The only extant exclusionary rule that the appellant can call upon is that imposed upon Maryland in 1961 by Mapp v. Ohio. Mapp's exclusionary rule, of course, is available only for violations of the federal Fourth Amendment.

(Emphasis supplied). See also State v. Savage, 170 Md. App. 149, 198-211, 906 A.2d 1054 (2006); Sun Kin Chan v. State, 78 Md. App. 287, 294-95, 552 A.2d 1351 (1989); In re Special Investigation No. 228, 54 Md. App. 149, 458 A.2d 820 (1953). And see Irma S. Raker, "Fourth Amendment and Independent State Grounds," 77 Miss. L.J. 401, 408-11 (2007) ("[T]oday, in Maryland, other than the federal exclusionary rule, the Court has not recognized an exclusionary rule for illegally seized evidence under Article 26.") (emphasis supplied).

The appellant, indeed, is not even urging an independent Maryland exclusionary rule upon us. He is simply taking such a rule for granted. It is not there.

G. Exclusionary Unavailability for Sub-Constitutional Violations

The appellant is twice bereft. Even if, purely arguendo, Maryland were to adopt (while this case is still non-final) an independent exclusionary rule of its own, it is highly unlikely that it would reach down to any police infractions below the level of violating Article 26 of the Maryland Declaration of Rights. Even when a state has opted to adopt its own independent exclusionary rule, it is almost universally the case that exclusion is only for constitutional violations and not for breaches of the law only at a sub-constitutional level. Just as a statutory violation is sub-constitutional, so too is a violation of a court-promulgated rule of procedure. A violation of Criminal Procedure Article, § 5-206 or a violation of Maryland Rules of Procedure 4-212 or 4-216.1 simply would not reach up to that level of minimum eligibility for even a hypothetical Maryland exclusionary rule. For the appellant, there simply is no exclusionary relief, either in reality or in hypothesizing.

The unavailability of an exclusionary rule at the sub-constitutional level is a completely natural and unremarkable phenomenon. As cases such as United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); and United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), have made clear over the decades and as the more recent opinions in Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) and Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), have prominently highlighted, the Exclusionary Rule has never been looked upon as an unmixed blessing.

The Exclusionary Rule is a clumsy instrument, and the Supreme Court has consistently admonished us that society "pays a heavy price" in setting dangerous felons free when the excluded evidence would have proved them guilty of crime. The Rule's highly selective application, therefore, has always required a delicate balancing between society's interest and the interest of the defendant. The Supreme Court has steadfastly insisted that any application of the Rule must "pay its own way" in terms of grave and serious defense concerns. It is a jailhouse myth, therefore, that the law is eagerly awaiting the chance to apply the Rule to every minor impropriety or illegality. In Maryland, the Exclusionary Rule applies only to violations of the federal Fourth Amendment and to nothing else.

H. The "Good Faith" Defense Is Irrelevant

Just as the narrow compass of the Exclusionary Rule makes the main thrust of the appellant's attack irrelevant, it also makes the main thrust of the State's counterattack equally irrelevant. The appellant's first contention is that the confession in issue is the poisoned fruit of the appellant's unlawful arrest. The heart of the State's response is that, regardless of whether the arrest was unlawful or not, the police did nothing unreasonable in serving the warrant and that this would, therefore, be a proper case to apply the good faith exception to the Exclusionary Rule.

The so-called "good faith doctrine" or "good faith exception" of United States v. Leon, supra, and Massachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984), however, does not exist in a vacuum. It is an aspect of Fourth Amendment law and nothing beyond that. It is a part of the Fourth Amendment whole. It is an exception to the Exclusionary Rule. Indeed, the animating rationale of the good faith exception is tied tightly to the Exclusionary Rule's limited purpose of deterring unreasonable police conduct. If the Exclusionary Rule served a broader purpose, the good faith exception would make no sense.

Because the Fourth Amendment and the Exclusionary Rule of Mapp v. Ohio do not apply to this case, therefore, neither does the good faith exception to that Exclusionary Rule. It is only in the universe of the Exclusionary Rule of Mapp that the "good faith doctrine" even exists. Where the Rule does not apply, the exception to the Rule cannot apply.

The "Fruit of the Poisonous Tree" Doctrine

As we undertake a discussion of the "fruit of the poisonous tree" doctrine, our first challenge is somehow to classify it. It is illusive. It builds on existing exclusionary principles for two or three federal constitutional protections by announcing the logically unremarkable proposition that when violations of those protections produce evidence of crime, the available suppression remedies will extend not only to the direct or immediate products of the violation but to the indirect or derivative products as well. It is because of the stretching out of the causal link between the cause and the effect that the "fruit of the poisonous tree" doctrine has been particularly susceptible to the defense of attenuation, as that concept has been thoroughly explicated in Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

The overwhelming majority of the cases excluding the "fruit of the poisonous tree" were triggered by Fourth Amendment violations. From the birth of the doctrine in 1920 through 1967, the Fourth Amendment was the only constitutional provision to serve as a trigger. As our survey will show, most of the cases applying the doctrine, federal and state, also referred to it as a Fourth Amendment doctrine. There is a massive overlap between exclusion pursuant to the "fruit of the poisonous tree" doctrine and exclusion pursuant to Mapp v. Ohio, but the two exclusions are, to be sure, not identical. Where the two exclusions overlap, to wit, where the trigger is an alleged Fourth Amendment violation, Mapp v. Ohio controls the field and it is not necessary to discuss the exclusion in any other terms. In the present case, for instance, the appellant claims that an unlawful arrest calls for the suppression of his confession. In such a case, the failure of the appellant to qualify for exclusion pursuant to Mapp v. Ohio is, ipso facto, the failure to qualify for exclusion pursuant to the "fruit of the poisonous tree" doctrine.

At its extreme outer edges, however, the "fruit of the poisonous tree" doctrine does cover some situations beyond the Fourth Amendment. In United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), the poisonous tree was also a violation of the Sixth Amendment right to counsel and the tainted fruit was a line-up identification. In Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984), the poisonous tree was a violation of the Sixth Amendment right to counsel and the allegedly tainted fruit was the body of the murder victim . In Nix v. Williams, 467 U.S. at 442, Chief Justice Burger discussed this wider coverage of the doctrine.

Although Silverthorne and Wong Sun involved violations of the Fourth Amendment, the "fruit of the poisonous tree" doctrine has not been limited to cases in which there has been a Fourth Amendment violation. The Court has applied the doctrine where the violations were of the Sixth Amendment, see United States v. Wade, 388 U.S. 218 (1967), as well as of the Fifth Amendment.

(Emphasis supplied).

Because so many of the cases applied, and still apply, the Fourth Amendment label to the doctrine, however, our discussion may on occasion lapse into that usage. In the case of this appellant, however, the choice of label will not make any difference because he alleges, as the trigger for exclusion, an unlawful arrest of his person and his possible recourse would be, of necessity, to Mapp v. Ohio. Under either the narrower Fourth Amendment label or the more technically correct broader label (once one is generally agreed upon), one critical common denominator is clear. The only trigger for exclusion under the "fruit of the poisonous tree" doctrine is the violation of a federal constitutional right.*fn7

The doctrine was long regarded as a part of the Fourth Amendment. It was first recognized in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). After finding a Fourth Amendment violation, the Supreme Court carried the exclusionary sanction forward to the second generation of improper use, as it prohibited the indirect or derivative use of the evidence as well as its direct use. In the words of Justice Holmes, "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." 251 U.S. at 392.

It was on the second occasion of the doctrine's use in Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939), that Justice Frankfurter coined the vivid description of derivative evidence as the "fruit of the poisonous tree." The phrase has had staying power. The doctrine reached full fruition in Wong Sun v. United States with the development of the notion of attenuation of taint as a reason not to exclude the derivative evidence. Wong Sun described the doctrine as an aspect of the Fourth Amendment and one that depended for its enforcement on the exclusionary power of the Fourth Amendment.

The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States that the Fourth Amendment may protect against the overhearing of verbal statements a well as against the more traditional seizure of "papers and effects." ... Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the "fruit" of official illegality than the more common tangible ...

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