Johnson v. State

and we appellees, infirmity urged by grounds from on the Baltimore City Court judgment therefore reverse the the Act is of a declaration and direct issuance constitutional. case

Judgment reversed City the Baltimore remanded to to enter a with directions declaring Chapter judgment codified Laws (1974, 1977 as Md. Code Cum. §§ to 3-2A09 of the Supp.), 3-2A01 Article, constitutional. Courts paid appellees. Costs OF WADE JOHNSON v. STATE IGLEHART MARYLAND Term, September 1977.] [No. April

Decided 1978. Murphy, J., Smith, argued The cause was and C. Digges, Levine, Eldridge, Cole, and Orth JJ. M.

Charles Carlson for appellant. Stephen General, B. Caplis, Assistant Attorney with whom Burch, General, were Francis B. Attorney Clarence W. and Sharp, General, Assistant brief, Attorney appellee. on the

Levine, J., Murphy, opinion delivered the C. Court. J., Orth, JJ., Orth, J., and Smith and dissent. filed a J., J., join

dissenting opinion in C. which Murphy, Smith, dissenting opinion J., filed a Murphy, C. page 333 infra. page Orth, JJ., join at in Smith which infra. determine whether granted certiorari in this case to We statements, after a valid given voluntary incriminatory are inadmissible rights, waiver of Miranda nevertheless such prosecution, criminal when against an accused following statements were obtained the accused before delay” producing “unnecessary Rule of former District Maryland officer violation in the for Carroll 709 a.1 After a trial Circuit Court jury charges of armed appellant convicted on County, was murder, conspiracy robbery, larceny, assault with intent handgun of a in connection with two unlawful use during the Annapolis, Maryland took holdups place An taken to the Court appeal month of 1975.2 January of affirmed conviction. Special Appeals appellant’s which 373 A. 2d 300 Because we have App. Md. admitted certain erroneously concluded that the trial court and shall reverse inculpatory appellant, statements we remand for a new trial.

I on began led to this appeal chronology events which matching 13, 1975, male young black January when on description into the Rainbow Cleaners appellant’s walked and commanded pistol out a Annapolis, pulled West Street clerk, Woolford, counter to fill' brown part-time Robin having After register. from the cash paper bag money floor, on the the assailant instructed to lie down Woolford fled; then was him in the shoulder and Woolford shot wounded. seriously 1, 1977, Chapter Maryland July District Rules 700 of the 1. Effective however, changes, slight made were underwent extensive revision. Only redesignated language the M.D.R. 723 a. Rules in this of former 709 a has now been M.D.R. Maryland District all references to the For the sake clarity, effect, currently unless otherwise opinion are to the version indicated. separate County grand jury three handed down 2. An Anne Arundel of the cases to against appellant then subsequently

indictments who obtained removal County. consolidated at the State’s Carroll All three cases were request together. and tried 24, 1975, month, evening January on the Later that men, Leonard and Charles John drove two appellant allegedly Road on Island Wilson, Solomons Supermarket to the Acme in his waited outside appellant Annapolis. While market, entered the robbed automobile, and Wilson Leonard escaping, in the Simkunas, process employee, Pam an his grazing Dunbar, manager, just store shot Donald his carrying sped away then Appellant shoulder. him. co-defendants with on police secured by for arrest were appellant’s

Warrants 25,1975. appellant, to locate members January Unable for family his Department Police contacted Annapolis City to surrender persuade appellant them purpose having and on proved This effort successful himself voluntarily. in to January 30, 1975, p.m., appellant turned himself at 3:15 station, police appellant Upon at the police. his arrival custody processed immediately taken into was photographed). No arrest warrants were (fingerprinted and although the record reveals that appellant, on served orally “for was under arrest appellant was informed he robbery” Acme investigation of armed attempt to take Supermarket. did not at this time Police appearance. for initial appellant to a commissioner an his receiving after p.m. appellant, At 3:20 approximately initialing rights by his warnings, first set of Miranda waived He then taken to a standardized form. and Thomas

interrogation room Officers Selman Wallace interrogation had the No sooner questioning. Brown began to of stomach appellant complain commenced than Brown, observing suspect’s pains. Officers Wallace deteriorating lips physical moist and glassy eyes, unusually to take investigation and offered appearance, broke off changed appellant hospital. appellant to the For some reason his rest. He then taken to permission mind and asked to was lockup house he stripped-down cell in the station where spent day night. the remainder of the and the next

Interrogation day, resumed at 9:45 a.m. on to some January improved after condition had appellant’s conducted the again extent. Once Officers and Brown Wallace recitation of interrogation with a prefacing investigation, warnings. Appellant executed written waiver the Miranda lasted some agreed to This session questioning. submit to hours, ten-page in a statement culminating six in the Acme complicity all to his appellant but confessed actually It that the statement was appears robbery. is no substantial signed until 3:45 on the 31st. There p.m. elicited that coerced or evidence this statement was deception police. on the part 31st, shortly after p.m.

At on the approximately 4:00 statement, taken before his first was making appellant had point appellant for the first time. At this commissioner undisputed It is custody 24 hours. been over his at all times and that a commissioner had been available house. short distance from the station When office was but a arrest, his had not appellant, trial after been v/hy asked at commissioner, Wallace Officer presented promptly before replied: then, sir, interrogated

“A. he hadn’t Because been investigating were still the case. and we “Q. keep In him at the you other words wanted in a detention cell Annapolis Department, Police there, opportunity until had such time you him, interrogate is that correct? that, County

“A. And not Anne Arundel only anybody not admit or Detention Center will take is sick.

* * * “Q. enough And felt that sick you [appellant] was him the ... you then if took Commissioner him? they accept wouldn’t “A. is their policy, That sir.” commissioner, Returning his appearance from final appellant read the for a third and warnings Miranda occasions, prior appellant time. As he had done on two p.m. outright and at 6:55 confessed questioning consented

319 January robbery shooting to the 13th at Rainbow Cleaners. 26,1975,

At on pretrial hearing August appellant sought 31st, made suppress police January the statements on arguing they were in of former obtained contravention District Rules 706 and 709 Alternatively, appellant a. illegal contended that the confessions were tainted by presentment in officer and therefore Illinois, on the 422 authority inadmissible Brown v. U. S. 2254, (1975).3 95 S. Ct. 45 L.Ed.2d 416 these Rejecting theories, the appellant’s trial court overruled objections admitted the statements.

II Long Rules, adoption before the District Maryland this Court had held that officers under a common were duty convey prisoner law “to in a time and reasonable without Kirk unnecessary delay magistrate.” before a & Son Garrett, 383, 407, (1896); v. 84 Md. 35 A. Twilley 1089 v. Perkins, 252, 265, (1893). 286, 19 77 Md. 26 A. L.R.A. 632 See (D. also v. 300 F. 1140 Copinger, Supp. Blackburn Md. 1969), curiam, (4th denied, per Cir.), aff’d 421 F. 2d 602 cert. (1970); 399 Kauffman, U. S. 910 Law of Arrest 125, 130-31(1941). Maryland, 5 Md. L. Rev. primarily Invoked in the context of imprisonment, civil actions for false this portended doctrine legislation guaranteeing enactment of right detainees the prompt presentment in Baltimore City and Montgomery County.4 required Former arresting give 3. M.D.R. 706 d officer to an accused (See copy a 720 “promptly of the arrest present warrant after his arrest.” M.D.R. g requiring charging service of warrant and document on defendant “as arrest.) possible” Since, elsewhere, soon as have concluded after for reasons to be stated we appellant’s statements were reason of inadmissible a, M.D.R. 723 we have no occasion to decide whether such statements were Illinois, also excludible under former M.D.R. 706 d or 422 Brown v. U. S. 95 S. Ct. 45 L.Ed.2d 416 See, e.g., (1957, 1968 Maryland Vol., 4. Repl. Code 1971 Cum. Art. Supp.) §52, (h) (Montgomery County) 1972), (repealed discussed Jackson v. State, 260, 267-69, (1969); (1957, 8 Md. Repl. 259 A. 2d 587 Code App.

Vol.) (Baltimore City) (repealed 1972), Taylor Art. § discussed State, 424, 431-32, (1938) 209 A. 2d Md. Code Pub. Loc. L. §§4, (Baltimore Art. 1961), City) and 916 (repealed discussed Grear State, 335, 348-49, (1950) 194 Md. 71 A. 2d 24 Cox v. Md. 525, 534-36, 64 A. 2d 732 however, adoption July It not until right that the M.D.R. 723 a this Court predecessor secured a officer was speedy production judicial originally a As on uniform statewide basis. defendants 5(a) the of drafted, paralleled a Rule closely M.D.R. 723 Procedure, the requiring Federal Rules Criminal a officer “without judicial of an accused before presentment Rule of Criminal See also Uniform unnecessary delay.” local from state and response Procedure 311. In to comments officials, however, the rule was proposed enforcement law of illegality, a incorporate presumption modified to by police beyond arrestee is detained applies whenever an following or first court arrest without hours the session of Liebmann, officer. See 2 G. having judicial been taken to a § 941, at Practice Maryland District Court Law the the is less than delay where Presumably, maximum, anticipates rule prescribed the necessity as the and reasonableness determination No case-by-case on a basis. will made courts be against imposition is made for the sanctions provision the rule. police who violate

Ill State, reasoning echoing Special 36 Md. contends that Appeals, App. Johnson — being only 723 a are provisions directory M.D.R. guidelines disposition of criminal defendants mere for In Rule 723 a Maryland arrest. its District upon entirety provides: pursuant

“A detained to an arrest defendant who shall taken before a officer without be in no than unnecessary delay and event later (1) (2) hours or earlier of after arrest the first upon a session of court after the defendant’s arrest or, has warrant where arrest been made without warrant, the first session of court after charging is filed. A document charging document if already shall filed after arrest promptly be filed.” mandatory M.D.R. 723 a intended to

That express evidenced in the first instance terms of the rule language itself. The rule declares unequivocal “defendant taken ... unnecessary delay” shall be without arrest, (emphasis added). a judicial following officer We have on stated numerous occasions that in the of a absence indication, contrary contextual the use of word “shall” is presumed Director, meaning, to have a mandatory Moss v. 561, 564-65, (1977), 279 Md. 2d 369 A. and thus denotes an imperative obligation inconsistent the exercise of Bd., discretion. Bright v. Unsat. C. & Fund 275 Md. J.

169, 338 A. 2d 248

But we need not on rely exclusively principles statutory construction to our conclusion that justify lays M.D.R. 723 down a rule compulsory interpreting conduct. In rules procedure, of criminal our practice has been to avoid semantic and nicety adopt to interpretation will which implement best the policies particular underlying the rule. State, 29, 41, Johnson v. (1975); 274 Md. 333 A. 2d 37 Brown 504, 492, 237 (1965). Md. 207 A. 2d 103 The of principle prompt presentment in M.D.R. embodied 723 a has qua been as a sine any described non in scheme of Snee, Hogan civil liberties. & Its McNabb-Mallory Rule: Rise, Rescue, Rationale and 47 L.J. 27 In Geo. elsewhere, Maryland, as the purpose of rule is insure the to that an accused will be promptly panoply afforded the full of safeguards provided appearance. at the initial

To comprehend fully importance the central prompt the presentment requirement, it is first necessary to examine briefly played role the initial appearance system our of justice. The procedural components of the initial appearance are set forth in 723 M.D.R. these among b. Chief protections is compelled the constitutionally requirement M.D.R. 723 b 4 that all persons arrested without a warrant be afforded prompt hearing at which a neutral officer must probable determine whether sufficient cause exists for the continued detention of the defendant. See Pugh, 103, 114, Gerstein v. 95 U. S. S. Ct. 43 L.Ed.2d Note, and equal see 5 U.Balt.L.Rev. 322 Of obligating a 723 b 3 importance provision is the of M.D.R. make appearance commissioner initial for eligibility pretrial determination of the defendant’s release under M.D.R. 721. to inform appearance is

A third function the initial to inform against him and charge brought accused of every counsel, and, if to have counsel right indigent, him his 2; 1; M.D.R. for him. M.D.R. b appointed M.D.R. b charged with Further, the defendant has been a. where matter subject lacks over the District Court felony initial conducting jurisdiction, commissioner right of his under M.D.R. appearance notify must accused (1957, 1976 hearing. a full Code request preliminary 727 to 592; request b Repl. Vol.) 723 5.' If such M.D.R. Art. § assign and time the commissioner must a date forthcoming, Finally, 6. hearing. M.D.R. 723 b where preliminary jurisdiction, the District the crime one within Court’s for trial. Id officer must fix the date presiding judicial bolster of M.D.R. b requirements The procedural constitutional fashion several fundamental substantial informed right of a defendant including the be guarantees, him, Declaration Maryland against the accusation of Rights, free 21; the from unauthorized right Art. Const., IV amends. person, his unreasonable seizures of U.S. 114; right to be XIV; Pugh, 420 U. S. at Gerstein v. Rights, Art. and to have counsel, allowed Declaration Const., amends. indigent, if U.S. appointed for him counsel 344-45, XIV; Wainwright, 372 U. S. VI Gideon (1963), process as as the due 9 L.Ed.2d 799 well Ct. methods. Brown investigatory from coercive right to be free 461, 682 278, 286, 56 80 L.Ed. Mississippi, 297 U. S. Ct. v. S. (1936). its the has construed state in union only one

Significantly, directory. merely statute to Wilson prompt presentment be 414, denied, 413, 423 State, 110, cert. 258 Ark. 522 S.W.2d v. hold, as To (1975). this view. U. S. 1017 We decline to follow prompt with the compliance the that urges, State is purely 723 a requirement of M.D.R. presentment would, opinion, in our be police, discretionary with

323 guarantees severely system procedural designed erode of insure fair treatment of criminal defendants from the time Prompt of arrest of presentment the time trial. after arrest impartial supervision assures of the defendant’s rights possible stage at the earliest of Accordingly, detention. we hold that the prompt presentment requirement of M.D.R. 723 a is mandatory binding and was therefore on the in the instant case.

IV We now determine what effect the violation of Rule 723 a should on during have the admissibility evidence obtained period delay. Appellant urges us to unnecessary per fashion a se exclusionary rule similar to that enunciated States, v. Supreme Mallory United 354 U. S. 449, 1356, 77 Upshaw United (1957), S. Ct. 1 v. L.Ed.2d 1479 States, (1948), 335 U. 69 S. S. Ct. 93 L.Ed. 100 States, McNabb United 332, 63 608, 87 318 S.U. S. Ct. L.Ed. (1943). McNabbMallory According rule, to the so-called any statement during obtained from an arrestee period unnecessary delay producing him magistrate before a contravention 5(a) of Federal Criminal Rule at inadmissible trial, irrespective or given whether not. voluntarily States, Upshaw v. United 413. See generally U. S. Federal Wright, (Criminal) Practice and Procedure

C. §§ 72-75

The Supreme Court has itself acknowledged McNabbMallory Constitution, rule is not derived from the but rather product of the exercise of the Court’s supervisory over the authority administration of criminal States, justice federal courts. McNabb United S. at 341. But see State, Williams v. U. Ind.

N.E.2d (1976); McCormick, Handbook of the Law C. § Evidence (2d 1972). at 340 ed. Consequently, rule binding is not Connecticut, on the states. Culombe v. 367 U. 568, 600-601, Cox v. S. Ct. 6 L.Ed.2d 1037 525, 536, 192 Md. 64 A. 2d 732 Critics McNabbMallory argue incentive while some given should law enforcement prompt officials to obey

324 confessions, of requirement,. exclusion production derogation in statements and evidence obtained other rule, for this pay type high price society “is too ” and Safe Omnibus Crime Control ‘constable’s blunder.’ 1097, Cong., 2d Sess. 1968, 90th Rep. Act No. Streets 38, reprinted in ^[1968] U.S. Code Cong. & Ad. News 2112, 379, 229 State, 93 also Hendrickson v. 2124. See Okla. Crim. 579, Gardner, 230 P. State v. 196, (1951); 119 Utah P. 2d 211 in 559, (1951). rule results They argue 2d 563-64 question virtually guilt beyond release of criminals whose of criminal in the conduct complications and causes undue in reprinted 40, 1097, Cong., 2d Rep. 90th Sess. trials. S. No. ^[1968] U.S. Code Cong. & Ad. News 2112, See United 2125-26. 1061, 1054, Ceccolini, L.Ed.2d S., 55 v. States U. 98 S. Ct. (1978). 268 then, of state courts majority

Not the vast surprisingly, McNabb-Mallory have passing question rejected on the process due for a traditional outright, opting instead admissibility confessions.5 voluntariness test view, from an to this a statement extracted According prompt not right presentment arrestee in of his violation Rogers Superior of Alameda v. facto inadmissible. ipso 929, (1955). 3, P. 2d 933 Rather County, 46 2d 291 Cal. evaluating overall relevant factor delay is considered a Carbonaro, 21 confession. People v. voluntariness of the 385, 433, A 271, 234 436 N.Y.2d 287 N.Y.S.2d N.E.2d if, light voluntary is deemed examined statement when utterance, surrounding its has of circumstances totality See, e.g., 190, 115 394, Haydel, Rptr. People P. 2d 12 3d Cal. 524 5. v. Cal. 866, 870 486, 547 (1976); (1974); 531, 536 State Wyman, 97 Idaho P. 2d State v. 568, Hansen, (Iowa 1975); Jones, 53 N. J. 252 v. 225 N.W.2d 350 State v. denied, 37, 39-41, (1969); Carbonaro, People 21 cert. A. 2d 395 S. 970 v. U. (1968); Shipley, N.Y.2d 234 N.E.2d State N.Y.S.2d denied, (1963); 354, 375 (1962), cert. State 232 Or. v. in P. 2d 374 U. S. 811 445, 392 237, 240 Hoffman, and see cases collected 2d 2d Wash. P. Annot., 19 A.L.R.2d 1331 courts, spurred Even on the enactment of Title II the federal (1970), § 1968,18 Omnibus Crime Control and Safe Streets Act of U.S.C. McNabb-Mallory delays lasting respect purported overrule hours, jettisoned exclusionary per rule less than six favor of a have all but the including se in all cases those where voluntariness standard See, Gaines, e.g., presentment F. exceeds six hours. United States (7th 1977). 2d Cir. violence, any been “extracted sort of threats or nor ... implied promises, by obtained direct or nor any Malloy Hogan, v. improper any exertion of influence.” 378 U. 7,1, and see 1489, (1964); State 84 S. 12 L.Ed.2d 653 S. Ct. Kidd, denied, 32, 35-36, v. cert. 1105, 281 Md. 375 A. 2d 98 S. 646 Ct.

The join State exhorts us a majority apply voluntariness standard statements obtained violation of M.D.R. 723 a. so. say We decline to do To that an unlawful postponement of the appearance merely initial be may statement, factor in assessing admissibility of a is to imply that an unnecessary if delay may be overlooked other entirely indicia of voluntariness exist. Under this even analysis, gross presentment violation requirement can be See, Commonwealth, disregarded e.g., v. altogether. Reeves denied, cert. (1971) 462 926 (Ky.), S.W.2d 404 U. (4-day S. 836 presentment did not affect admissibility); State v. Williams, (Mo. 1963) 369 Despite S.W.2d 408 (10-day delay). its relatively popular acceptance, therefore, voluntariness standard is a hopelessly inadequate means of safeguarding right defendant’s of prompt presentment.

Voicing their disenchantment with the voluntariness standard, several years states have elected in recent to adopt a per se exclusionary rule in many order combat what perceive to an increase the number flagrant violations State, of the prompt production Webster v. requirement. 59 54, State, Del. 298, (1965); A. 2d Vorhauer v. 213 301 59 Del. 35, States, 886, (1965); A. Larkin 212 2d 892 v. United 144 A. 100, 103 (D.C. State, 1958); Oliver v. 2d 250 2d App. So. (but (Fla. Roberts, see 1971); 889 State v. 274 So. 2d 264 (Fla. on grounds, rev’d other App.), (Fla. 285 2d So. 1973)); Benbo, Mont., State v. P. 2d Davenport, Commonwealth v. 370 A. 2d 306-307 (Pa. 1977). Vollhardt, See v. State 25, 244 157 Conn. 2dA. (1968) Mallory rule); (construing statutory codification oí People Williams, see v. App.3d 36, 137 Rptr. Cal. Cal. (1977)

70, 75 (adopting per respect se rule with line-up evidence, identification retaining but voluntariness standard confessions). from some despite sharp criticism recognize,

These courts see, Narcotics Fed. quarters, e.g., Bivens v. Six Unknown 388, 416, 29 L.Ed.2d 619 91 S. Ct. Agents, 403 U. S. rule (1971) J., dissenting), exclusionary that the (Burger, C. curbing means of practical the most effective and perhaps fundamental impinges upon lawless conduct when of a criminal defendant. legal rights and constitutional Carbonaro, 893; People 212 A. 2d at v. Vorhauer v. Illinois, (Fuld, J., Brown dissenting); N.E.2d at 438 C. see the rule is that behind theory S. 599-600. U. illegal as a result obtained refusing to admit evidence investigating conduct, in ... particular courts will “instill officers, counterparts, greater degree or in their future Tucker, Michigan accused.” rights care toward the 2357, 41 433, 447, 94 There L.Ed.2d 182 417 U. S. Ct. is an exclusionary especially the rule is reason to believe that in-custody respect deterrent when invoked effective in the stage at this activity since interrogations, police for procuring aimed evidence investigation likely to be at Procedure Pre-Arraignment of at trial. Model use Code § (1975). Oaks, the 150.3, Studying Commentary, at 397 See Seizure, 37 L. Rev. Search and U. Chi. Exclusionary Rule in 665, (1970). 722 primary is the deterrence of future misconduct

While Janis, 428 rule, v. exclusionary the United States function of (1976); Note, 433, 3021, 446, 49 L.Ed.2d 1046 S. 96 S. Ct. U. 364, of (1977), suppression illegally 372 the 62 Cornell L. Rev. of prevent the debasement evidence is also said to obtained by insuring that courts do become judicial process of law.” McNabb v. “accomplices willful disobedience States, States, 345; v. 318 U. Olmstead United United S. 564, (1928) 438, 483, 485, L.Ed. 944 277 48 Ct. 72 U. S. S. (Brandeis, J., Comment, dissenting). Integrity Judicial See Expanding Scope An for Argument and Judicial Review: 1129, Rule, 1163-64 20 L. Rev. Exclusionary U.C.L.A. Powell, 465, 485, 96 S. But cf. v. 428 U. S. Ct. Stone 3037, (“While (1976) 49 courts ... must ever be L.Ed.2d 1067 integrity preserving concerned with a justification this concern has limited force as process, evidence”). probative the exclusion highly

327 Arguing that an exclusionary rule too sweep would broadly, urges adoption State our more tempered two per variations se rule. variant, Under the first State’s a confession or statement suppressed would be if the only defendant could demonstrate that he prejudiced was unfairly reason of police failure to obey prompt presentment People Hosier, rule. 116, v. 186 Colo. 1161, 525 P. 2d 1164 (1974); Johnson, State v. 465, 222 993, Kan. 565 P. 2d 1000-1001 Prejudice said to exist when the purpose extract, solely “squeeze out” up” or “sew a confession culpable or statement to assure a finding guilt. White, People 404, v. Mich. 221 N.W.2d (1974), denied, cert. 420 U. (1975); State, Briggs 2d Wis. N.W.2d Raigosa 2d 1977). P. 1015 (Wyo. view,

This approach, in our is merely a reformulation of the Furthermore, voluntariness test. the prejudice test would encumber the defendant well-nigh with the insurmountable burden of showing that detention was deliberately prolonged in order to extract confession. In our view defendant prejudice suffers procured whenever statement during an illegal delay is against used him at trial or leads directly other evidence ultimately employed to convict him. Futch, Commonwealth v. 447 Pa. 290 A. 2d (1972).Accord, Benbo, State v. 570 P. 2d at 900.

The State’s second alternative apply would be to exclusionary rule only where the police committed a have substantial violation of the prompt presentment rule. This approach is similar to a proposal recently propounded by the American Law Institute in its Model Code of § Pre-Arraignment Procedure 150.3 Under Model Code, statements may suppressed be only if the of violation the prompt presentment provision 1) gross, wilful and prejudicial to accused; 2) or was of a likely kind mislead the accused legal as to his rights or to influenced the have defendant’s decision statement; 3) to make the or a created significant risk of untrustworthiness. While the ALI scheme does offer more in the way protection of than the traditional standard, voluntariness that, we believe as currently might formulated, “substantiality conceivably test” a, of encourage requirements of the M.D.R. evasion Moreover, adoption of an rather than deter such conduct. unnecessarily significantly test would ALI-type admissibility determinations complicate and confuse criteria are themselves requiring apply trial courts to definition. susceptible precise of an accused to protection right of the of In our opinion arrest following a officer production judicial before prompt exclusionary by per a se effectively accomplished most will be unlawful rule calculated to deter rule. Not is such a only justice of the criminal preserve integrity detentions and even-handed assure more certain and system, likely but it requirement will prompt presentment application courts, officials and law enforcement to trial the bar provide limits custodial guidance permissible as to the greater interrogation prior appearance. to an initial Commonwealth A. Davenport, 370 2d 306. in rare instances may of this rule application

Conceivably, defendants; potentially guilty culminate in the release directly or nevertheless, rights secured on balance or ignored a M.D.R. 723 are too vital be indirectly by Snee, Hogan & compromised éxpedieney. of social the name supra, 47 L. J. at 23. Geo. against unnecessary ... prohibition any

“The authority and an an accusatorial arrest between arraignment possibility a minimizes preliminary abridgement of citizen’s unnecessary a any would, course, abridgement liberty. Such any such danger unconstitutional. restriction of unnecessary and unconstitutional liberty significantly diminishes when citizen judicial brought swiftly before neutral Dixon, Pa. authority____” Commonwealth 311 A. 2d statement, or voluntary any

We therefore hold that otherwise, during period obtained from an arrestee officer, him producing unnecessary delay a, thereby violating M.D.R. is subject to exclusion when against offered into evidence the defendant as part of the prosecution’s case-in-chief. A statement is automatically if, excludible at the time it defendant, was obtained from the he produced had not been commissioner his initial appearance within the earlier of hours after arrest or the first session of arrest, court following irrespective of the Where, reason for however, the delay. the delay in presentment falls within the outer limits established by a, M.D.R. 723 it is upon incumbent the trial court to determine whether the State has itsmet burden of showing that the delay was necessary under the circumstances particular case. Examples necessary delay might include 1) required: those out carry reasonable routine procedures administrative such as recording, fingerprinting 2) photographing; to determine whether a charging document should accusing crime; be issued arrestee of 3) to verify the of the commission crimes specified in the document; charging 4) to obtain information likely to be a significant aid in averting or persons harm to loss to property value; 5) substantial to obtain relevant nontestimonial information likely to be significant discovering the identity or location of persons other may who have been associated with the arrestee in the commission of the offense for which he apprehended, loss, or preventing the or alteration destruction of evidence relating Mallory such crime. States, 454-55;

United 354 U. atS. Uniform Rule of Criminal 311; Procedure Model Code of Pre-Arraignment Procedure § 130.2(2)(b) (1975).

We note also that a spontaneous truly “threshhold” confession or statement at the uttered time of or arrest shortly thereafter would not grounds on the excludible that police subsequently failed to act diligently complying with M.D.R. 723 a. In such cases there no manifestly connection statement, between the delay and the and since police misconduct does not in any way contribute to the making confession, rule exclusionary would logically not apply. Mitchell, United 65, 70, States v. 322 U. S. 64 S. Ct. Seohnlein, L.Ed. 1140 United States v. denied, 1051, (4th Cir.), 399 913

423 F. 2d cert. U. S. 1053 (Criminal) (1970); Federal Practice and Procedure Wright, 1 C. § 73, at 79-80 24 hand, for over police appellant just

In the case at held arrest, despite the of a availability after his and this hours 31,1975. 30 and What January commissioner at all times on more, deliberately established evidence purpose for the postponed presentment appellant interrogation. holding Under our subjecting him to further here, statement inculpatory first appellant’s announced Supermarket signed shortly Acme (concerning robbery), commissioner on the prior appearance to his initial before a se, 31st, since per afternoon of the was inadmissible presentment which given during period beyond 24 after the first session long extended hours and following court the arrest. statement, admitting

Appellant’s responsibility second shooting, given holdup Cleaners which was Rainbow upon return from immediately appellant’s almost 31, January commissioner on should likewise have been us, that the say, on the record before suppressed. We cannot act, after occurring second an independent confession was therefore free from time for reflection and deliberate sum, then, In unless illegal taint of the detention. preceding presentment appellant right prompt waived his officer, judicial implicating statements him in the crimes both 24, from January 13 and should have been excluded evidence, having in clear violation of M.D.R. been obtained 723 a.

V waiving final contention is that thrice his State’s rights Arizona, Miranda 384 constitutional under v. U. S. 478-79, (1966), appellant 86 S. 16 L.Ed.2d 694 also Ct. right he have had under M.D.R. 723 a to be any may waived argument brought promptly before a officer. The posited acceptance the State has won in at least two federal appellate circuits and the District Columbia. States, (D.C. 1969), 651, 656 419 F. 2d Pettyjohn v. United Cir.

331 denied, 397 cert. 1058 U. S. United Indian Boy States v. X, (9th 1977); F.D.P., 565 F. 2d 591 Matter of 352 Cir. A. (D.C. 1976). Hosier, 2d App. See also People v. 1164; Roberts, (Fla.

P. 2d at 2d App.), State So. (Fla. 1973); rev'd on other 2d grounds, So. Richmond 2d (Wyo. 1976). P. Proponents of this the purpose view assert that behind the rule, McNabb-Mallory part, protect at least in indigent against illiterate defendants the coercive conditions of Thus, interrogation. said, custodial it is indirectly the rule vindicates accused’s Fifth privilege against Amendment self'incrimination, is precisely the Supreme what protect sought by means of the prophylactic rule Moore, announced in Miranda. See J. Practice Federal ¶ (2d 5.02[2], 1977). Therefore, pp. at 5-15 to 5-16 ed. since the warnings provide Miranda an accused with the same protection he would receive under McNabb-Mallory, follows a rights that waiver of one’s operate Miranda should also as warning waiver to an right judicial immediate constitutional rights States, under Mallory. Frazier v. United (D.C. 1969). 419 F. 2d Cir.

This argument in our is opinion premise, based on a false presentment Miranda and the prompt requirement share a common purpose. The fact the matter is that Miranda was never intended to supplant rule, as the Mallory Supreme acknowledged itself in the opinion. Miranda Miranda v. Arizona, 384 U. at n. 32. jurist One has commented it is unsound to treat Miranda as Mallory closely related, since the a qualitative former is of the test interrogation, circumstances of the while the latter focuses on the duration delay. States, of time Frazier v. United F. J., 2d at 1171 (Burger, dissenting). sure,

To be important one appearance function of the initial is counsel; to advise an right arrestee of his this extent partial there so, is a overlap been Miranda. Even it has convincingly reading argued typically that the perfunctory warnings Miranda may at the time of arrest by insufficient to his provide adequate the accused with notice of rights; constitutional follow-up and that a exists for need of the to counsel a neutral officer right of the advice basic court, 723 2. is M.D.R. b Commonwealth provided by such as (1973). Note, 701, 703 79 Dick. 241, 301 A. 2d Tingle, 451 Pa. v. L. Rev. observed,

But, initial appearance previously as have we than a supplementary more considerably affords a defendant include protections Additional warning of his to counsel. right by the charges brought of all right to be notified eligibility for hearing on the defendant’s right and the to a more, counsel. What court-appointed release and pretrial are entitled to defendants arrested without warrant cause determination. probable mandated constitutionally and are the scope lie Miranda matters outside Such presiding officer responsibility exclusive appearance. initial performed by functions two light

In of the dissimilar rules, rights of Miranda can conclude that waiver only we right his to a automatically an accused does not waive Accord, under M.D.R. 723 a. United prompt initial appearance 1975); (W.D. 1011, 1020-21 F. Wis. Erving, Supp. States course, Benbo, may 899. a defendant 570 P. 2d at Of State v. presentment, provided right prompt waive his specifically made. State knowingly intelligently See such waiver 558, 572-74, A. 2d 228 Since McKay, 280 Md. appellant no indication that record in the case reveals present to a deferment of his initial consented effectively ever rights that his under M.D.R. 723 a were appearance, we hold waived. validly of Judgment Special of the Court reversed; remanded to Appeals court instructions judgment reverse of County for Circuit Court Carroll for remand a new trial. paid Anne Arundel Costs County. J,

Orth, dissenting: Johnson Iglehart Wade arrest of the time of the At a, a,1 M.D.R. District Rule now Maryland (appellant), provided: conveniently before a shall be taken

“A defendant unnecessary delay officer without judicial available (1) of the earlier later than in no event (2) session the first or hours after arrest twenty-four warrant, a upon arrest defendant’s of after the court without or, made arrest has been where an charging warrant, after the session court the first place take charging shall the defendant. Such after arrest.” promptly today:

A holds majority this Court otherwise, statement, voluntary or “[A]ny during period an arrestee obtained from producing judicial him before unnecessary delay a, officer, subject is violating M.D.R. thereby against into evidence exclusion offered when case-in-chief. part prosecution’s defendant as if, at the excludible automatically A statement is defendant, he had not it was from time obtained his initial produced before commissioner been after hours earlier appearance within arrest, following or of court arrest the first session opinion note effective 1. As the its out majority points July revision, chapter only Maryland extensive but 700 of the District Rules underwent slight changes redesignated It was made in M.D.R. 709 a. were former a, as reads: M.D.R. and now pursuant “A to an arrest shall be taken defendant who is detained unnecessary delay no the and in event before a later officer without (2) (1) than the arrest or first earlier of 24 hours after or, upon a warrant session of court the defendant’s arrest after warrant, first session where an arrest has been made without a charging charging filed. A document of court after document already promptly filed filed.” shall be arrest if not after clarity, opinion references to the that for all majority noted the sake effect, currently Maryland are to unless District Rules the version dissenting procedure same in this otherwise opinion. indicated. The followed irrespective Where, of delay. the reason for the however, presentment the falls the within a, outer limits by established M.D.R. 723 it is upon incumbent trial court to determine whether the State has met its showing burden delay was under the necessary circumstances of the particular case.” am in complete

I disagreement holding. with this

I long recognized police We have the common duty law officers “to convey prisoner in a reasonable time and without Kirk & unnecessary delay, magistrate____” before a Garrett, 383, 407, Son v. 84 Md. 35 A. 1089 Twilley Perkins, 252, 265, 26 (1893). held, 77 Md. A. 286 We have never however, itself, that a violation sufficient duty, was statement, exclude from any evidence or voluntary otherwise, police. obtained Municipal

When the City Court Baltimore created was 1961, the legislature provided: any person “Whenever shall be in the City charge arrested of Baltimore upon any criminal ... it shall the duty of the officer or constable arrest, making such or custody person in whose arrested be, to may take such person judge before a of the criminal of the Municipal division City____” Court Baltimore Code § (1957, Vol.) 26, 1972).2 1966 Repl. Art. 115 (repealed We § 424, 431-432, discussed 115 in Taylor v. 238 Md. A. 2d 595 rejected argument We that the statute required that an taken arrestee be before one of the judges of the Municipal Court his arrest. immediately after We “No observed: time limit is set as to Section when is compulsory that an arrested person be taken one of § 2. Acts ch. enacted the law codified as Art. § provision part, repealed which the above at the same 428 of time City (1949) the Charter and Public Local Laws of Baltimore as amended § except ch. Acts 1951. The was in as former law substance same justice that State, peace. the arrestee was to be taken before a Gerstein v. denied, 322, 327, (1970), 10 Md. App. cert. 270 A. 2d 331 260 Md. denied, cert. 402 U. S. 1009 effect that a failure is made to the and no mention judges; the specified of a judges by one the person take such a before to inadmissible. Had confession voluntary shall time render a simple intended, very been a so it would havé Legislature the held: Id at 432. We manifest such intention.” task to “[T]he Municipal the judge to take the before failure [arrestee] them not render confession did prior to Ms Court State, App. 10 Md. Metallo v. inadmissible.” Id. 432. See (1970) denied, Md. in 79-80, 804, cert. 259 734 267 A. 2d out Special Appeals pointed Court its comply for to with no sanctions failure provided statute Supp. 300 F. Copinger, in Blackburn provisions. court v. (D. 1969), F. aff'd, 421 2d cert. Md. 1140-1142 clearly (1970), the statute denied, 910 declared that S.U. against suspect police interrogate to permit not did any legal they force for an may have evidence of whom no were a It “If Blackburn period of time. said: indeterminate duty by police of their to prisoner, the violation federal in itself result bring him officer would before per inadmissibility This se rule has not of his confession. prosecutions state courts. apply to criminal held to been assessing confession was whether Blackburn’s But contrary explicit law of voluntary, to the his detention important 1142. Maryland factor.” Id. at an § (h) (repealed in Vol.) (1957, Repl. Art. Code inter 1972), applicable Montgomery provided County, such person shall taken before “Each alia: arrested arrest following committing immediately magistrate3 430, 260 State, A. App. In 8 Md. Murphy v. delay.” without speaking through (1970) Special Appeals, 2d 357 the Court Court, this Judge of Judge Murphy, now Chief Chief in violation challenge to a statement obtained characterized a sense, rather one in the constitutional but of the statute as not exclusionary “through of a non-constitutional application one Supreme by rule of similar to that fashioned evidence States, [, 77 S. Ct. 354 U. S. v. United Mallory Court employee of the committing magistrate was under Section 3. A county People’s Montgomery executive for Court appointed County People’s for judge of the Court consent of the chief the advice and committing magistrate. Montgomery County designated as a failure for (1957)], i.e., applied the sanction to be person an arrested immediately bring any post-arrest exclusion of magistrate ... committing was The intermediate from Id. at 436. statements made evidence.” ground this judge properly court held that the trial overruled In the statement. Jackson admissibility to the objection denied, (1969), 260, 269, 259A. 2d 587 cert. 8 Md. App. (1970), Appeals by way said Special 257 Md. 734 the Court sanctions provide any of dicta that as the statute failed not to legislature the intent of the non-compliance, applied by Supreme embrace the sanctions in the controlling prosecution as Mallory which were 525, 536, A. 2d 732 State, Md. state courts. See Cox made it the City formerly Local of Baltimore Public Laws or duty making of a officer or an arrest constable arrestee having person of a arrested to take the custody City before a Justice of the Peace. Baltimore Code Pub. § (1938) 4, required Loe. L. Art. 742. Section 916 of the article that in the persons daytime arrested under “[a]ll Article shall taken provisions of this of this be sub-division the officer the arrest making immediately before examination, females except nearest Police for that all Justice years age may and male children under fourteen who be arrested or taken into shall taken before custody be shall nearest Police Justice for examination when there be 4 In provided.” matrons at the stationhouse as hereinafter State, (1950) Grear v. 194 Md. 71 A. 2d 24 Grear was held, being arrested in Baltimore taken City and without available, magistrate, although a one from nine before was afternoon, o’clockSunday morning Monday until four o’clock held. a confession was obtained from him while he was so he unlawfully Grear contended that was held in violation the local laws and that his confession was therefore difference, in the inadmissible. We saw no material § § circumstances, 916. The between 742 and Court believed § § § (1938) 742 and 916 565 City L. Art. 4. Baltimore of Pub. Loe. Code § appeared City (1949) Art. 428 and as Pub! L. Baltimore Code Loe. § was ch. 616 and respectively. repealed Acts 428 was Section repealed by Acts ch. 203. reason, not reason Grear was only [why if not the that “[o]ne get the desire to magistrate] taken was immediately that recognized first.” Id. at 348. It a confession “[l]ack not a valid could evidence hold sufficient arrestee] [an lawfully to hold him pertinent or reason. Lack evidence Id. at holding unlawfully.” could not him manifestly justify however, clear, suggest it did not mean to It that 348. made immediately arrested person “that case to take any duty examination to be right magistrate implies before a there then and discharged unless the State immediately hold the sufficient to which would be produces testimony hearing on hearing or a full after a full prisoner preliminary found that Cox corpus.” Id. at 348-349. habeas (1949) 525, A. 2d 192 Md. and James State , (1949) Md. A. dispositive: 2d 888 were case) held (followed we

“In in the James the Coxcase has obtained fact that evidence been make necessarily unlawfully does inadmissible, the facts show that and that unless duress as itself constituted such illegal arrest in as rule involuntary, same make the confession as applicable of the confession admissibility legal.” Id. at where arrest 349.5 was admissiblity held of the confession It test for the circumstances voluntarily given whether it was as interrogation” product process “the of the suction at Edwards to be “the reverse of Id. 349-351.See voluntary.” State, 387, 391-393, A. 2d In White v. 194 Md. 71 487 State, 489, (1953),it claimed that 201 Md. 94 A. 2d 447 v. being length of time before White had been held for such a his magistrate taken as to make confession rights. and affront his constitutional involuntary Court, Hammond, J., speaking for a unanimous said: made and so recently “This has been so contention 31, State, A. Md. 65 answered in 193 fully James v. 459, State, law, present 5. For the status of the see 274 Md. Everhart (1975), State, 62, Ryon App. 337 A. 2d 100 Md. A. 2d

aff'd, 302, Md. 363 A. 2d 888; State, 335, 24; 2d Grear v. 194 Md. 71 A. 2d Edwards v. 194 Md. 71 A. 2d exhaustive and penetrating analyses the law and the cases that we do not feel is necessary, desirable, or appropriate to refish these waters. Suffice it to say very that a careful consideration of case, all of the circumstances of this as to both manner in which the confession was obtained and the length held, of time during which the accused was leads us to believe that there is less possibility of to, of, or injury deprivation his rights constitutional than in the just similar cases cited.” Id. at 493. It is manifest that this Court consistently adhered to the view violation, that a to take an duty arrestee immediately magistrate before a imposed whether the common or law by statute perse inadmissible, did not render a confession its being admissibility determined under the voluntariness standard.

II Upon the creation of the District Maryland this Court rules adopted then, for its governance. It was through M.D.R. that, effective 5 July over above common duty, law the right to speedy production before a judicial officer was secured to arrestees on a uniform statewide basis. “As originally proposed, the rule would have directly tracked the provisions (a) of Rule 5 of the Federal Rules of Criminal Procedure which as construed constitutes the so-called Rule. Mallory language the first sentence (a) M.D.R. 709 following unnecessary ‘without delay’ was added to supply interpretive gloss following vigorous objection to the earlier draft by Police Commissioner Attorneys’ City Pomerleau of Baltimore the State’s Liebmann, Maryland Law Association.” G. District Court (hereinafter Liebmann) 941, and Practice to as referred § (1976).6 Mallory States, See v. United 77 S. 354 U. authority oiLiebmann, majority suggest response 6. The on the that “[i]n to comments from state and local proposed law enforcement officials ... incorporate rule presumption illegality, was modified applies

339 S. States, 63 318 U. (1957); v. United McNabb Ct. 1356 Ct. 608 presentment prompt that holds majority

The I am accord mandatory. in a is 723 M.D.R. requirement to reasons all the advanced holding, with but not with that itself, the rule express terms of I it. think that support “defendant shall be that a language declaring unequivocal officer judicial to a unnecessary delay” taken ... without imperative an itself to denote following arrest sufficient Moss of discretion. the exercise obligation inconsistent with 564-565, A. Director, 369 2d 1011 279 Md. 165, 169, A. Bd., Md. Bright Fund v. Unsat. C. J.& go to further. alternative 2d I see no need least, at the presented suggests, reason by majority intended this were not constitutional overtones which provides It is that the rule adopting the rule. true custody is afforded procedures person a taken into whereby informed of receive benefit opportunity be charges, right to the rights, example, certain advice as hearing, counsel and and determinations preliminary rule, But the pretrial probable release and cause. respect, is not from counterpart like its in the federal derived system, being product the federal or beyond constitutions state authority of the exercise of over supervisory the Court’s McNabb justice. administration of criminal See v. United States, Md. at 536. 318 U. S. at Cox

Ill does not follow that Accepting mandatory, the rule it a a automatically operates violation of it to exclude statement by police beyond the first 24 hours or whenever an arrestee is detained having taken to a following session of court officer.” is been arrest without interpret saying seems to me that there do not as that. It I Liebmann significant supply “to distinction between modification interpretive gloss” incorporate illegality.” It presumption “to modification rule, however, Liebmann, appeared implicitly the modification event, defining any under permissible delay, repudiated the cases (a) during periods of excluding Federal Rule 5 statements obtained § Liebmann, magistrate. 142-143. resulting unavailability from of a notes, inappropriate for the n. LAebmann at 143: “Thus would Middleton, Maryland 344 F.2d courts such as United States v. to follow eases (C.A.2d, 1965) States, App. D. C. and Coleman v. United U.S. (1962).” F.2d 576 voluntarily intended, obtained. Had so we intention incidentally which would have contrary prior been to our decisions, it a very simple would have been task to manifest such intention. But the rule adopted provides we no sanctions for its violation.

The per se rule exclusionary adopted the by majority bestows full constitutional import right the of an arrestee to be promptly taken before a officer. It judicial makes the right the equivalent of against the constitutional prohibitions unreasonable searches and seizures and self-incrimination. itself, But the rule regardless serves, it purpose lacks the constitutional basis which emerged from the Fourth Amendment’s ban against searches unreasonable seizures and the Fifth against Amendment’s ban self-incrimination justified the exclusionary rule for a Arizona, violation of 436, them. See Miranda v. 384 U. S. Ohio, S. Ct. 1602 Mapp 367 U. S. 81 S. Ct. . (1961) per se exclusionary today Court, rule adopted by this is, observes, as the majority contrary to decisions of “the vast majority state present courts” and the trend of federal courts, see footnote 5 of the majority opinion. As have we seen, departs from prior decisions of relating this Court § to the Liebmann, issue. Moreover cautions: partial “The tracking language of the federal grounds rule urged for modification [the] [of M.D.R. 709 should not implying be taken as a] a statement police obtained by during a period authorized by the rule would be excludable though even it otherwise meets Miranda standards since this possibility was not discussed when the rule was drawn.”

If the possibility was discussed recently when the rule was revised, no resolution of the issue is reflected in M.D.R. 723 a as adopted.

The primary function of the exclusionary rule deterrence of police misconduct,. future United States v. (1976).7 That function Janis, 96 Ct. 428 U. S. voluntary to exclude opinion, In my is ill here. served has officer merely because from evidence confession officer a fraction a judicial an arrestee before presented rule, no matter mandate of the under the a second too late patently It is so reason, process. what debases and the sensible public general the interest of the against bit I am not the least justice of criminal administration advanced arguments otherwise persuaded the Constitution war between majority. “There is no adoption of S. at but the sense,” Mapp, 367 U. common Rule the sanction for violation rule as perse exclusionary recognize this. does not certainly a protection “the majority’s belief dispute I cannot the a production before to prompt accused right of the of an effectively be most will following arrest officer judicial But the most rule.” exclusionary se accomplished by per a right of non-constitutional of a protection effective There is also justice. goal of criminal accused is not the sole have society of to right of the protection the to be considered for it answer against offenses person has committed who good is public The according the of the land. his acts law a procedural police the always by punishing not enhanced Ceccolini, S., 98, U. In United States deficiency. 21 March 1978 L.W. decided [67

Ct. States 1978], Court United Supreme March the half a century it an observation made expressly reaffirmed ago:

“ game in is more than a ‘A prosecution criminal and the checkmated may be which the Government have not its officers merely game lost because States, according rule.’ McGuire United played (1927).” 273 U.S. requires that we short, I a rule adopt

In would Appeals Special the of judgment the Court reverse sharp received rule has majority point 7. The out that the exclusionary including quarters, the United Justice criticism from the Chief some 388, 416, Agents, 403 U. S. States. See Bivens v. Six Unknown Fed. Narcotics J., (1971) dissenting). (Burger, 91 S. Ct. 1999 C. award a for no than new trial other reason that the were 45 late in presenting judicial minutes Johnson before a officer. Judge

Chief authorize me state Murphy Judge Smith herein. they join expressed views J, Murphy, dissenting: C. crime, holds confession today that a

voluntarily by made an accused afforded the full person panoply warnings, Miranda is nevertheless inadmissible period evidence if during “unnecessary made delay” bringing accused officer in a, violation of former M.D.R. so now M.D.R. 723 a. In concluding, only adopted the Court has not a position concededly overwhelming weight variance with the overruled, silentio, authority in country, but has sub long-established and Maryland well-considered law to contrary. The action taken the Court by will result in exclusion of highly probative and reliable evidence will most devastating have a assuredly impact on administration justice Maryland. of criminal Were result reached the Court mandated federal or state constitutions, law, required by or otherwise I prevailing would, course, in the unhesitatingly join opinion. Court’s not, Since it I plainly respectfully most dissent.

M.D.R. requires person 709 a that an arrested shall be brought before a officer judicial delay” unnecessary “without but in any event not later than the earlier of the first session of court after or 24 arrest hours. the earlier When of either of these exceeded, outer limits is rule the the adopted by Court would automatically exclude from a evidence thereafter, confession made at any irrespective time the delay. reason for the Court’s se rule per exclusionary applies regard as prescribed well without to these maximum limits, since operates it to exclude any during statement made any period delay in prompt presentment following arrest if the delay, irrespective it, of its or the length reason for was “unnecessary.”

As the majority readily acknowledges, se per rule is not exclusionary constitutionally mandated but derives of the States Supreme from an United exercise courts. federal authority over the lower supervisory of its 608, 87 States, 332, 63 Ct. L.Ed. 318 U. S. S. McNabb v. United States, 410, 1943; U. S. 819, v. United Upshaw decided in 1948; Mallory decided in 69 Ct. 93 L.Ed. 1 L.Ed.2d States, 77 S. 354 U. S. Ct. United that it was the collectively make clear decided in right person of an accused that Supreme Court’s view following arrest judicial a officer prompt presentment before which effectively protected by be most a rule would obtained excluded from evidence confessions automatically in during “unnecessary presenting period delay” arraignment. Defining just delay accused for what officer was presenting person an arrested problems to courts predictably great caused “unnecessary” required concept. grapple vague and elusive with such . clear, Because rule neither nor sensible because application, practice, led was unrealistic unworkable states, results, including almost all widely varying Indeed, itself has language Mallory it. Maryland, rejected “unnecessary fostered confusion as to what constitutes of additional delay,” particularly delay purpose for investigation. Mallory arraignment point states one also place possible”; yet should take “as as the Court quickly said: arresting officers upon

“The duty enjoined indicates arraign unnecessary delay’ ‘without or for mechanical the command does not call may justify Circumstances automatic obedience. for arraignment, as arrest and delay

brief between instance, the accused volunteered story where through third verification susceptible quick give a nature to parties. But the must not confession.” 354 extraction of a opportunity 455. U. atS.

In followed apparent recognition the uncertainty adoption McNabb-Mallory rule, in the of its wake 344

Supreme Connecticut; in 367 observed Culombe v. U. (1961): S. 81 S. 6 1037 Ct. L.Ed.2d

“The Case an innovation McNabb was from our for fair responsibility derived concern proceeding in the modes criminal federal courts. States, large, The adopted have similar exclusionary principle. And we adhere although cases, unreservedly to McNabb for federal criminal prosecutions we have not extended its rule to state requirement as a of the Fourteenth Amendment.” (footnotes omitted). S. at 600-01 U. “unnecessary delay” McNabb-Mallory . formulation of provides no guidelines respect limits of permissible interrogation prior presentment, custodial as the experience of the federal so graphically courts demonstrates. For example, intérrogation hours eight arrest held not following delay to constitute unnecessary Vita, 1961), (2d United States 2d F. Cir. cert. denied, (1962), stating: 369 U. S. 823 the court agree appellant

“We cannot with the that federal law enforcement officers so are confined rigidly 5(a) Federal Rule of Criminal they Procedure must, immediately upon ‘arrest,’ all cease interrogation formally charge accused a committing magistrate. Such an inflexible paralyze edict would investigative process eviscerate effective law enforcement.” 294 F. 2d at 532..

See Ladson, (2d 1961), also United States F. 2d 535 Cir. denied, (1962) cert. 369 U. (delay arraignment one hour interrogation not unnecessary); United Metoyer v. States, (D.C. (two-hour F. 1957) 2d 30 delay Cir. permissible). courts, however, Some the opposing have taken view that delay of even a purpose few minutes for the interrogation Thus, renders a statement inadmissible. States, 1965), Alston (D.C. v. United 348 F. 2d Cir. court held that a minutes for the purpose five rule, presentment prompt violative interrogation was inadmissible, “the since obtained was that the statement committing before appellant to take arresting officers failed ” Accord, Greenwell v. magistrate possible.’ ‘as as quickly denied, 1964), 380 cert. (D.C. States, 336 F. 2d 962 Cir. United cases surveyed (1965). judge federal district 923 One U. S. them to be and found circuit the District of Columbia within Fuller, F. 243 v. States conflict. See United in irreconcilable 1967), (D.C. 2d 1199 Cir. 1965), aff'd 407 F. (D.D.C. 178 Supp. 1120 denied, 393 (1968), U. S. rehearing cert. on aff'd § 862(a), at 612-15 Evidence Wigmore, also 3 J. See 1970). (Chadbourn rev. McNabb-Mallory

Congressional dissatisfaction passage culminated in eventually rule exclusionary Act Streets Safe II of the Crime Control Title Omnibus in 3501; provides subsection 1968, 18 that statute U.S.C. solely inadmissible because (c) is not confession if the trial a commissioner bringing person in delay made, if the voluntarily the confession was finds that judge if confession and the given jury, to it is left to the weight to be it is following arrest. While six hours made within restricting as legislation this possible to construe hours, delays McNabb-Mallory in excess of six see rule to 1975); (W.D. 388 F. 1011 Wis. Erving, Supp. United States v. supra, (1972); Wigmore, 3 Annot., Fed. 377 J. 12 A.L.R. § generally 862(a), 619-623, courts have the federal manner, rejecting in a more liberal construed the statute delay that a holding completely, McNabb-Mallory constitutes “merely six hours arraignment greater than judge the trial considered another factor to be Hathorn, F. 451 v. determining United States voluntariness.” Gaines, Accord, 1337, 1341 (5th 1971). States v. 2d United Cir. Shoemaker, 542 (7th 1977); F. 2d 618 United States 555 Cir. (1976); denied, 1004 United (10th Cir.), 429 U. S. F. 2d 561 cert. denied, 429 (9th Cir.), Edwards, F. 2d 689 cert. States v. Killer, 534 F. 2d (1976); Bear United States v. U. S. (1976);

(8th Cir.), denied, Government cert. 429 U. S. (3d 1974), Gereau, cert. 502 F. 2d 914 Cir. Virgin Islands v. Halbert, 436 F. denied, United States v. U. S. (9th 1970). McNabb-Mallory Thus, 2d 1226 Cir. doctrine has been in the federal effectively vitiated courts and replaced with a voluntariness test arraignment is determining considered as one factor in only Note, admissibility. See Admissibility Confessions and Arraignment: Obtained Between Arrest Federal and Approaches, Pennsylvania 79 Dickinson L. R. 309 Similarly, as here majority recognizes, overwhelming of states majority adopt per have refused to se rule for exclusionary prompt arraignment violations of See, e.g., statutes. Rogers Superior of Alameda County, (1955), 2d 291 P. 2d 929 Cal. where a defendant arrest, confessed four after his days arraigned and was not until eighth the in of a day, violation California statute which required presentment in unnecessary delay any without and event within two after arrest. The days rejected court the contention that the confession was due to inadmissible statute, violation of the stating that the test of admissibility whether, coilsidering circumstances, all the the statement was freely voluntarily made. See cases cited in generally Annot., (1951); 19 A.L.R.2d 1331 3 Wigmore, J. supra, § 862(a). in those Even few states the adopted which have doctrine, McNabb-Mallory the of the rule is wisdom questioned sometimes it because considers the amount only of time between arrest and confession giving any without consideration to whether the confession voluntary, was leading to the exclusion statements freely given and See, constitutionally e.g., valid. Tingle, Commonwealth v. (1973) Pa. A. (Eagen, 2d 701 concurring). J. State, In Taylor (1965), 238 Md. 209 A. 2d 595 our predecessors rejected the contention that statements were rendered inadmissible because the defendant had not been taken promptly court, before a of the judge municipal as then required by statute. there pointed We out that no time limit arraignment statute, fixed in the unlike the rule here, under consideration but that in mention any event “no is made to the effect that a failure person to take such a before one of judges by specified time shall render a voluntary confession inadmissible.” 238 Md. at 432. stated We upon depended admissibility test of ... critical “the that surrounding circumstances totality [the] whether the statements were disclosed making confession] [of 432. Id. at made.” voluntarily freely allow Taylor enunciated would The test of voluntariness of a consider, ruling admissibility on the court to the trial confession, confession, surrounding all the circumstances illegally has the fact the defendant been including Thus, 709 a. in violation of M.D.R. voluntariness detained as on delay much on the time of places emphasis test not so is, of delay. Unnecessary delay during occurred what not, voluntariness, course, it is determining but factor Indeed, not, decisions have dispositive. Maryland should admissibility of a confession’s recognized that the test long State, See, given. e.g., it Gill v. voluntarily is whether was State, (1972); A. Price 261 Md. Md. 2d 575 State, (1971); 208 A. 2d 614 A. 2d 256 238 Md. Streams v. 432, 199 A. 2d 773 Bean v. 234 Md. has chosen unfortunate that the Court particularly It is adopt the precedents and prior instant case to our overrule McNabb-Mallory. In view now eroded rationale thoroughly record, doubtful of the circumstances disclosed officer bringing that the Johnson before a. of M.D.R. 709 Johnson actually provisions violated the 30, 1975. January at 3:15 P.M. on surrendered session, it have in would Had the District Court then been M.D.R. 709 in upon police complying incumbent the been initial for his a officer bring judicial a to Johnson before The of that court session. appearance not later than the end in disclose, however, court was whether the record does not 30, 1975, January on session at the time of arrest Johnson’s disclose that or that Nor does it any day. at time thereafter on in a District Court presenting the Johnson before delay contemplation “unnecessary” Commissioner was within almost pains of the rule. ill with stomach Johnson became refusing request, after his arrest and at his after immediately to remain police hospitalization, permitted offer of he was indicated overnight. testimony The lockup the station house he a Commissioner while was that had he been taken before his to a detention ill, precluded county referral regulations therefore, this said, period delay that center. It cannot be police not contrived certainly by was unnecessary; was Johnson’s initial deliberately postpone as a to ruse subject in order to him officer appearance to and coerce confession. interrogation time disclosing The record is deficient similarly in. began of the or ended which the first session District Court clear, however, that at following on the It is day. perfectly again 31, 1975, once January on was 9:45 A.M. Johnson to warnings willingness indicated a afforded Miranda and time, As of that neither undergo police questioning. and, elapsed outer limits of M.D.R. 709 a had prescribed time circumstances, bringing of the Johnson view The record before a was not “unnecessary.” Commissioner A.M. on fairly beginning shortly discloses after 9:45 to to agreement January Johnson’s submit in a statement interrogation voluntary culminated oral himself in the Acme robbery. which he incriminated Market ultimately it is true While that the confession was writing January 31 signed reduced to and until 3:45 P.M. on — — 24-hour had period expired minutes after the to that orally given prior substance confession was well Wallace, time. one of officers interrogating Detective the two Johnson, during the questioned who had testified that interrogation on Johnson January five-hour conducted and, gave robbery 10-page concerning statement Acme addition, In the crime his diagram drew a scene. a statement testimony, explained Wallace how obtained: talking get “Well them after finished to usually we ask we them to do try put try it in their own this words we put line so that into this in our nothing line statement being person interrogated try own words but who is put it into their time it words. The started was own 9:45 ten statement it ended at page A.M. we have a 3:45 P.M.” officer, Brown, said Detective interrogating other to make a statement after proceeded waiving his

Johnson rights. Miranda He said that Johnson “started just talking” writing.” and that he “started It is in his implicit testimony himself after 9:45 began incriminating shortly that Johnson A.M. and continued until the confession ultimately was completed signed at P.M. further testified 3:45 Brown statement, during course his Johnson admitted that he people. robbed Acme with two other Johnson agreed to photographic lineup purpose view his filled identifying accomplices. The detectives out a photographic lineup noting form that Johnson six viewed photographs from he positively identified the two other form, trial, individuals. This introduced in evidence was Johnson; signed in a by signature space below his marked “time” is written “2/56 PM.” It clear very is thus that at the latest Johnson had incriminated himself the Acme robbery 2:56 by January P.M. on 19 minutes 24-hour before the period had run. McNabb-Mallory

In facts, view of exception these to the Mitchell, rule created by United States v. U. S. (1944),

Ct. 88 L. Ed. 1140 appears applicable. to be That case involved an oral voluntarily given by confession accused shortly after his arrest. The Court there found that though even brought accused was not committing magistrate for until some arraignment eight days confessed, after he had and that such failure constituted illegal detention, that the presentment nevertheless did require not exclusion of the confession. The Court said detention, that the illegal confession induced nor was it obtained as a result of a violation of the accused’s legal rights; said, consequently, the admission of the confession did not government constitute use wrongdoing by fruits of Mitchell, its own officers. As there was no demonstrated prior violation M.D.R. 709 a to the commencement of Johnson’s morning confession on the January sign 31. That he did not the confession until much day, later some 30 minutes period after the 24-hour expired, had actually because he was not brought before day, until 4 P.M. that does not mandate

a Commissioner rule, McNabb-Mallory of the confession under the exclusion prosecution did not constitute use since its admission part police. See any wrongdoing on the of the of the fruits of (3d Virgin Gereau, 2d 914 Islands F. Government of Jones, denied, Com. v. 1974),cert. 420 U. S. 909 Cir. Pa., A. 2d 970 interpret

It seems in the extreme to so foolhardy done, a, to requirements majority of M.D.R. 709 as the has mandate exclusion from of a the automatic evidence voluntary given present confession under the circumstances in this case. The of the doctrine that the today benefits adopts incriminating will accrue to those who have made only prior statements arrest to following presentment but are provided rights officer. No sanctions to secure person afforded to an accused under M.D.R. 709 a does who unless, course, not confess prior prompt presentment, of applied ultimate rule is to in such exclusionary be instances, and final all namely, outright release from prosecution of subjected “unnecessary delay” an individual — in arraignment illogical 709 a no under M.D.R. means holding extension of the if the purpose Court’s exclusionary police rule is to deter future misconduct. decision, prosecution

As a result of will majority’s establish, challenged, that required where affirmatively during period “unnecessary the confession was not made a, 723 a. This of M.D.R. 709 now M.D.R. delay” violation addition upon prosecution burden will be admissibility the confession’s demonstrating, where all compliance challenged, traditional voluntariness holding Miranda That the will be requirements. Court’s effect, to 1971 M.D.R. afforded a at least when retroactive enacted, thus likely, spawning 709 a first is more than applications to overturn plethora post conviction final. long convictions since would,

I therefore, judgments affirm the conviction this Brother dissenting my case. I concur in the fully views M.D.R. 709 a provisions agree while Orth conduct, a violation mandatory rule prescribe sanction for the not, provision express rule does absent voluntary of an otherwise itself, exclusion require the rule confession. they join me to state that authorize

Judges Smith Orth in the herein. expressed views

Case Details

Case Name: Johnson v. State

Court Name: Court of Appeals of Maryland

Date Published: Apr 6, 1978

Citation: 384 A.2d 709

Docket Number: [No. 70, September Term, 1977.]

Court Abbreviation: Md.