Logan v. State

LOGAN v. STATE THEODORE RUSSELL MARYLAND OF Term, September 1980.] [No. MARYLAND JEROME BANKS v. STATE OF

EUGENE Term, 36, September 1980.] [No. February

Decided 1981. J., The argued cause was and before Murphy, Smith, C. Digges, Eldridge, Cole, and JJ. Rodowsky, Davidson Malloy, Defender, R.

Michael Public Assistant with whom Murrell, Defender, H. was Alan Public brief, on the appellants. Anselmi, General,

Michael A. Attorney Assistant with Sachs, General, Stephen Attorney H. brief, whom was on the for appellee.

Digges, J., opinion delivered the of the Court. Eldridge, J., JJ., filed a and dissent. Eldridge, Davidson, Cole infra, dissenting opinion in which page Cole and JJ., concur. Davidson, causes, for consideration

These two criminal consolidated Court, both, present legal common to in this us with issues solely in related to the question as well as an additional each (i) whether, issues are: case from which it arises. mutual suspect criminal legal question, as a technical detained Maryland District Rule 723 a can waive judicial officer without that the defendant "be taken before a (ii) cannot, unnecessary assuming an accused delay;” not, validly of these did waive his that one defendants appearance, whether that defendant’s statement prior made before a commissioner was (iii) a; assuming obtained violation of M.D.R. effectively made, timely appearance waiver of a can be fact, whether, in was acceptable a valid and waiver obtained unique by police each of these cases! The issues to the (i) whether, determining individual causes are: defendants, the court of these trial imposed sentence on one admittedly on partly relying considering erred (ii) crimes; confessions six other illegally obtained informed of and properly the defendant was whether right of to exercise his allocution opportunity afforded the Because of the pursuant Maryland Rule 772 d. diversity presented the two multiplicity and issues general initially set factual appeals, we shall forth case, particular supply and then background of each may necessary for proper additional information that made here and our understanding of various contentions of disposition them.

I discuss, petitioner first Theodore Russell case we police himself to after Logan voluntarily surrendered learning that a for his had been obtained warrant arrest an property from personal connection with the theft of apartment in Adelphi. police custody, prior While in but judicial officer, Logan his a appearance before was advised by right that he had a police an immediate initial commissioner, appearance before a where he would be specifically rights that, of a number of as an informed accused, enjoy. he stating was entitled to After that he him, understood the information provided Logan ostensibly right waived his "to an initial appearance.” immediate This petitioner subsequently incriminating made statements which later objection. were admitted at trial over his He was found guilty jury a in the Circuit Court for Prince J.) (Fisher, George’s County 20, 1979, April daytime on housebreaking petit larceny, and for these crimes sentenced to serve a total term prison of nine and one-half years. Special Appeals The Court of affirmed the convictions, Logan Md. App. 410 A.2d 1110 (1980), and we granted certiorari. Banks,

Eugene Jerome petitioner appeal in the other us, before was following shooting killing arrested McNeil, driver, Hyattsville, Robert a taxi Maryland on January a 1979. After check for of gunpowder traces on his hospital hands and treatment in a dog for a bite suffered arrest, during litany rights by Banks was read a investigating police officer, including prompt his to a initial appearance before a pursuant commissioner Following M.D.R. 723 a. a acknowledgement written that he had received and understood these and waived the requirement, Banks made an inculpatory implicating robbery statement himself and killing of Over the objection, McNeil. defendant’s statement was subsequently received into evidence trial in the Circuit George’s County. Upon Court for Prince being of, by jury convicted Judge sentenced Ross to fifty for, murder, total years second degree false imprisonment, handgun use of a during the commission of a felony, robbery, armed and carrying handgun, Banks noted appeal. an Special Appeals, Court unreported opinion, convictions, affirmed the but vacated the sentence it because concluded that Banks’ d not Maryland Rule 772 was for in provided allocution him; granted certiorari. afforded we relating to waiver of issues important

Because M.D.R. 723 a are common under initial prompt causes, the cases we ordered Logan and Banks to both each of the and will answer argument, consolidated opinion. appeals two this one presented by the contentions II this petitioners urging central contention both

Court to their is that the reverse convictions custody promptly M.D.R. 723 a that an accused who is be cannot, law, judicial taken a matter before officer issue, confronting waived a detained In this it suspect. important only to note at the outset that we are at this time and, considering legal thus, not, question we need for the purposes resolution, of its concern ourselves with the factual aspects of the occurring ostensible waiver each case. We accordingly approach specific issue with the assumption defendants, being fully these apprised knowledgeable of their right appearance, to a initial willingly voluntarily right. intended to waive that short, question voluntary, now before us is whether a intelligent knowledgeable is permitted. waiver

We commence our setting discussion this matter out in full the rule formerly governed as it was worded which detention of the two petitioners here:

A defendant is detained to an arrest pursuant who shall be taken before a officer without un necessary delay and in no event later than the ear (1) (2) lier of 24 hours after arrest or the first session upon of court after the defendant’s arrest a warrant or, where an arrest has been made without a war rant, charging session of court after the first document is A document shall be charging filed. promptly

filed after if already arrest filed. [Maryland District Rule 723 a].1 Although expressly the rule itself neither permits nor prohibits provisions, Court, a waiver of its this a mere two years ago Johnson v. 282 Md. 384 A.2d 709 (1978), requirements addressed whether the of M.D.R. 723 a could be waived. The accused in Johnson had been detained for over 24 following hours his arrest without presentment judicial officer, before a during which time he implicated degree robbery himself to a in the and shooting for which he had been police interrogation arrested. which immediately followed before yielded commissioner further his outright confession to the commission of those In addressing crimes. the issue whether a violation of the dictates of requires M.D.R. 723 a automatic exclusion from trial of evidence during obtained period unnecessary Levine, a delay, Judge speaking for Court, stated:

In our opinion protection of the of an accused prompt production judicial before a officer following arrest will be effectively most accomplished by per exclusionary a se rule. Not only is such a rule calculated to deter unlawful detentions and to preserve integrity of the justice system, likely criminal but it is to assure more certain application and even-handed of the prompt presentment requirement provide and will courts, to trial the bar and law enforcement officials greater guidance as to permissible limits of interrogation prior custodial to an initial appearance. July

1. The rule was revised effective 1979 to read: pursuant A defendant who is detained to an arrest shall be taken judicial unnecessary delay before a officer without and in no event charging later than 24 hours after arrest. A document shall be filed promptly already if after arrest filed. statement, voluntary We therefore hold otherwise, during from an arrestee obtained him before unnecessary delay producing period a, officer, 723 is judicial thereby violating M.D.R. subject when offered into evidence to exclusion against part prosecution’s the defendant as 328-29, 717.] case-in-chief. 384 A.2d at [Id. Johnson, the State’s contention rejecting

In after suspect rights, a detained waiving his Miranda2 abandons, right, id. at automatically the M.D.R. 723 331-32, concluded with the 384 A.2d at this Court quite pertinent which is following unequivocal language, inquiry our here: sum, then, waived his appellant unless officer,

prompt presentment [the] before a implicating statements him in the crimes .. . should evidence, having have been been excluded from in clear violation of M.D.R. 723 a. obtained course, may Of a defendant specifically waive his right prompt presentment, provided to such waiver knowingly is intelligently and made .... Since the record in the present case reveals no indication that appellant effectively ever consented to a deferment appearance, his initial we hold that his under validly 723 a were not waived. [Id. M.D.R. (citations omitted).]

330, 332, 384 A.2d at significance In an effort to of the quoted counter language, argues this mere Public Defender holding "dictum” which into a should not be transformed Arizona, Ed. 2d 694 Ct. 16 L. 2. Miranda v. 86 S. had earlier principles it subverts the basic which because and entreats us to opinion, announced in the Johnson been decline the invitation. import. disaffirm or overrule its We to our statement adhering our explaining Before reasons Johnson, initially petitioners we are observe that merely characterizing language incorrect central contrary, our conclusion there was "dictum.” To — indeed, necessary requisite our inquiry — holding accordingly reached was ultimate result Normally, precedent guide with a recent this Court. such us, say than present we do little more in the cases would However, Johnson. issue was and controlled decided analysis the waiver in that case was since our issue extensive, again squarely presented are and because we here, may it be advisable that we question with the same articulate reasons for our thoroughly more initial right appearance that the to a determination in M.D.R. 723 a can be waived. embodied necessary explanation Part of for the of our the focus what, precisely, in Johnson be on the rule is holding should designed to achieve at the initial before a and, thus, what, judicial precisely, suspect officer a detained temporarily forgoes respect by waiving right in this his to be promptly previously taken before the commissioner. We procedural components in Johnson the of the catalogued first, initial officer is to inform the appearance: him charges supply copies of all with accused them; charging already documents if he has not received second, the defendant is to be informed of his counsel, if indigent, supply to have the State third, him charge;” ... free of lawyer "with commissioner is to make a suspect’s determination of the eligibility pre-trial 721; fourth, for if release under M.D.R. warrant, arrested a may without further detention not be made judicial without determination officer that exists; fifth, probable cause for arrest if the District Court subject jurisdiction try lacks matter to the defendant on the charge, judicial officer is to inform the accused of his right preliminary hearing; finally, to a and if the District

469 case, jurisdiction try judicial has officer is Court to trial, notify and to either set the time date of that he will so advised the court clerk. See defendant be 321-22, State, 713-14. As 384 A.2d at supra Johnson at can itself, readily M.D.R. 723 b reading discerned from Johnson, as we were requirements observed in these designed to

bolster substantial fashion several fundamental guarantees, right constitutional of a including the against defendant to be informed of the accusation him, 21; Maryland Rights, Declaration of Art.

right to be free from unauthorized Const., unreasonable person, seizures U.S. XIV;

amends. IV and Gerstein 420 Pugh, U.S. at 114; counsel, to be allowed Declaration of Rights, 21, Art. have counsel appointed him Const., if indigent, XIV; U.S. amends. VI and 335, 344-45, Gideon v. Wainwright, 372 U.S. 83 S. 792, (1963),

Ct. 9 L. Ed. 2d 799 well as due process right investigatory to be free from coercive 278, 286, methods. Mississippi, Brown v. 322, 384 [Id. 80 L. Ed. 682 714.]

A.2d at Having objectives mind, these of M.D.R. 723 a in it is important upon remember that we are not called address whether the defendant can waive the he be rights by officer; informed of these rather, we focus on he whether can waive his to be taken before a promptly unnecessary commissioner without all, delay. First of we it clear rights, deem that each otherwise, constitutional or the rule contemplated by to be known to made the accused at his initial can See, State, itself be waived. e.g., Martel v. 221 Md.

300-02, (1960), 157 denied, A.2d 441 cert. 363 U.S. 849 (1960) (waiver indictment); Washington, Garland v. (1914);

U.S. S. Ct. 58 L. Ed. 772 Jordan v. 134, 138, 156

221 Md. (1959), denied, A.2d cert. (1960) (failure U.S. arraignment conduct does

470 law; arraignment procedure process violate due waiver (b) (c) hearing waived possible); (preliminary M.D.R. 727 timely request); to make a by waiver or failure express both 269, 236, States, Ct. 87 L. 317 U.S. 63 S. v. United Adams denied, (1942), 317 U.S. 268, rehearing Ed. 143 A.L.R. 435 (c) (waiver right (1943), Procedure 723 713 Md. Rule of 218, Bustamonte, 412 counsel); v. U.S. Schneckloth 605, (1973); State, Md. Lyles v. 203 2041, 2d 36 L. Ed. 854 (1954) 291, to be 610, 102 (relinquishment 293 A.2d by cause probable warrant or free from searches without consent). true, persuasive we can divine no being valid This voluntarily, intelligently and acting why reason an accused involved, here cannot knowledge rights with a basic reasonably requirement designed prefatory waive a substantive informed of such promptly ensure that he were we to strange holding indeed rights. It would be waive knowingly the defendant can though conclude that rule knowingly waive a court right, he cannot constitutional (absent purported waiver language rendering such specific ineffective) that implement adopted to bolster 558, 570, McKay, 280 Md. right. See State constitutional (if (1977) fundamental constitutional 375 A.2d 235 accused, jury by can be waived waiver of unanimous benefit can likewise be existing primarily verdict for his waived). the case of United States v. Relying principally on (7th 1943), the contend Haupt, petitioners 136 F.2d 661 Cir. imposes 723 a that of M.D.R. officers, and that independent obligation arresting on the is not duty imposed by upon such a law another It is disagree. defendant’s to waive.3 We now well-settled authority permitted, waiver is almost universal that when beneficiary surrenders both the potential supports language Haupt 3. that We observe that while there is (even petitioners argument correctly interpret Logan here if the and Banks make teachings), sparce acceptance, if its the case received all, years following nearly forty ago. See United States its announcement (2d 1944). Grote, Note, The McNabb Rule 140 F.2d 415 Cir. See also (1947) longer Transformed, (Haupt no 47 Colum. L. Rev. 1219 question Mitchell, authoritative on waiver after United States v. 322 U.S. denied, (1944), rehearing U.S. 770 322 L. Ed. 1140 S. Ct. (1944)). privilege it, he possesses by virtue of ability as well as the to claim the advantage flowing from perform the failure to any corresponding obligation imposed on the State See, right. e.g., 1, 7, Jones v. 279 Md. 367 A.2d (1977) denied, (duty (1976), bring cert. defendant to imposed by trial on State right defendant’s to trial; waivable); speedy right Renshaw, 259, State v. 276 Md. (1975) 270, 219, 347 A.2d (right 227 to imposes duty counsel provide on State to representation; waivable); effective McKay, State supra (right v. to jury unanimous criminal verdict does not impose imperative requirement on the State waiver). same; provide to right subject to The existence obligation destroys ability seldom defendant willingly forego to what exists primarily for his short, benefit. In reject proposition we "a submerged murky waters that meaningful surround waivers. We are accept unable to the thesis that no one can intelligently ever important waive an right voluntarily....” constitutional Petty john States, 69, v. App. 651, United 136 D.C. 419 F.2d (D.C. 1969), denied, 654 Cir. cert. 397 U.S. 1058 In view, our the same ordinarily true in important the area of non-constitutional rights. connection, we note that the list of

generally recognized susceptible to be long of waiver is See, State, e.g., 603, indeed. 612, Allen v. 183 Md. 39 A.2d (1944) 820, 824 (privilege not to be compelled give to against evidence oneself a criminal may case "like all privileges” waived); other be Zimmerman, State v. 261 Md. (1971) 11, 12, 156, 157 273 A.2d trial); (right jury Jenkins State, (1963) 529, 532-33, 232 618, Md. 194 A.2d 621 (admission illegally seized evidence by waived failure to object thereto); Collins, 70, 79-80, State v. 265 Md. 288 A.2d (1972) 163, 168 (right to confront the against witnesses defendant); Warden, 627, 631, 222 Elliott v. 243 Md. 55, A.2d (1966) counsel); 57 (right to Wingo, 514, Barker v. 407 U.S. 524-29, (1972); 2182, 92 S. 101 Jones v. Ct. 33 L. Ed. 2d 1, 8, 1, 279 Md. (1976), denied, 367 A.2d 6 cert. 431 (1977) trial); U.S. 915 (right Warden, to speedy Ogle v. (1964) 425, (claim 426-27, 179, 180

Md. 204 A.2d of violation of procedural right, otherwise, constitutional or by waived entry guilty plea); McKay, State v. supra (right verdict). jury unanimous criminal Particularly instructive inquiry counsel, to our here is the fact that the the right compelled self-incrimination, to be free from are universally subject held to be See, to waiver a defendant. e.g., California, Faretta 422 U.S. 95 S. Ct. (1975); L. States, Ed. 2d 562 Adams v. United (1942), 63 S. Ct. 87 L. denied, Ed. 2d 268 rehearing (1943) counsel); U.S. 713 (right Broderick, Gardner v. (1968) U.S. 20 L. Ed. 2d 1082 (privilege self-incrimination). (282 against As we noted in Johnson 331, 384 719), Md. at A.2d at there overlap is some amount of between the Miranda requirements imposed to dispel the coercive atmosphere may render the exercise of these rights difficult or impossible, and the of M.D.R. 723 a that the defendant promptly taken police before officer. In this it regard, is instructive to note that respect with to the equivalent federal of our initial appearance rule, (a), R. Supreme Fed. Crim. P. 5 and the States, 332, Court decisions of McNabb v. United 318 U.S. 63 608, (1943), Ct. denied, S. 87 L. Ed. 819 rehearing 319 U.S. (1943), Mallory States, 784 v. 449, United 354 U.S. 77 1356, (1957), S. Ct. 1 L. Ed. 2d 1479 it was later observed the federal circuit appeals court of that:

[T]he evolution in understanding Mallory our of has "paralleled Supreme visible movement Court application towards the Fifth and Sixth Amendment considerations to the pre-arraignment That, period. culminated, course, movement in 5(a) Miranda, in the shadow of which Rule now . . Mallory ultimately resides . .” ... has been concerned with effectuation of Fifth and Sixth Amendment protections against dangers involuntary self-incrimination in station houses and with the other evils inherent in police interrogation Mallory of an accused secret.... itself has stood guard against only the "third degree,” but also "the pressures in a Police Station

473 interrogation secret without prisoners under upon These, course, are counsel, or friend.” relative [Frazier concerns of Miranda. v. precisely the 1161, 180, States, D.C. F.2d App. 136 419 United (D.C. 1969), part, overruled in 476 Cir. 1164-65 (citations 1973) omitted).] (D.C. F.2d 891 Cir. discussion from our earlier Although we think it evident more than the encompasses M.D.R. 723 the concern of directed, see Johnson Miranda was evils to which particular 719, State, 331, to the extent that 384 A.2d at supra v. at holding that Miranda overlap, the authorities there is of our conclusion supportive be waived are can Moreover, 723 a is likewise waivable. requirement of M.D.R. body there is a substantial we observe that which, jurisdictions interpreting authority from other before a of an initial requirement similar their with unnecessary delay, is accord judicial officer without determination in Johnson that our necessary requisites a, assuming the have been 723

M. D.R. Boy X, satisfied, See United States v. Indian can be waived. (9th 585, 1977), denied, U.S. 841 591 Cir. cert. 439 565 F.2d (1978); Poole, 289, App. D.C. 495 F.2d United States v. 161 (D.C. 115, 120 1974), denied, (1975); 422 U.S. 1048 Cir. cert. States, 1166; at United States v. supra Frazier v. United (9th 169, 1971), Lopez, denied, 450 F.2d 170 Cir. cert. States, (1972); 419 F.2d at Pettyjohn supra,

931 v. United Grote, 656; 415; Hosier, People supra United States v. (1974) (en banc); 1161, People 186 Colo. 525 P.2d (1972) (en Weaver, banc); P.2d 179 Colo. (D.C. States, 1973); A.2d Hawkins v. United 1976), 1217, 1229 (Wyoming Richmond v. 554 P.2d denied, 558 P.2d 509 Cf. United States v. rehearing (1947), 91 L. Ed. 1654 Bayer, 331 U.S. denied, (1947); State, rehearing 332 U.S. 785 Gutierrez v. 388 (Ind. 520, 1979); State, 244, Green v. 257 Ind. N. E.2d 525-26 487, 267, 271 (1971); Goodseal, State v. 220 Kan. 274 N.E.2d (1976), 228 279, grounds, 553 P.2d overruled on other 290-91 (1980). 294, Kan. our Accordingly, 615 P.2d we reaffirm holding prompt appearance in Johnson that the requirement susceptible of M.D.R. 723 a is of waiver suspect.

Ill we legally permissible, is that waiver concluded Having relinquishment ostensible specific now focus on Logan by petitioners made governing standard prevalent The in these cases. Banks ago rights was decades constitutional of fundamental waiver in Johnson Court Supreme by the United States enunciated (1938): 1019, 82 L. Ed. 1461 458, Zerbst, 58 S. Ct. U.S. v. or relinquishment ordinarily an intentional is "A waiver privilege. known of a abandonment intelligent there has been whether determination of case, in each depend, must counsel waiver of surrounding circumstances facts and upon particular commenting on In further at 464. Id. that case....” recently stated has more Court subject, Supreme same did "that a defendant presumption exists a that there but in at great; burden rights; prosecution’s waive from the clearly inferred can be waiver least some cases North interrogated.” person words of actions and L. Butler, Carolina v. the dictate recognize While we Ed. 2d 286 before a be taken a defendant Rule that Maryland District required delay is hot unnecessary without commissioner constitution, Kennedy State, see 289 Md. the federal (1980); 314, 323, 384 421 A.2d 1376 Johnson v. 282 Md. (1978), A.2d we have seen that the initial appearance requirement protects and implements several fundamental constitutional rights, both-federal and state. Id. at 384 A.2d at 714. Given interplay the intimate between these constitutional and the initial itself, appearance proceeding we knowing, believe that the intelligent voluntary waiver standard set out Zerbst, Johnson supra, is the one to be met for an effective appearance. initial of a the waiver of Md. at in Johnson opinion our This is what accordingly apply and we 714, contemplates, A.2d at factual individual examining the that standard appeals. two present in each involved circumstances a provided was Logan petitioner that discloses The record form: following written aloud, the of, read copy and was 723(a) you a gives Rule Court Maryland District judicial before a appearance initial to an you if are detained that provides That Rule officer. a taken before you shall be arrest

pursuant to an delay in no unnecessary officer without judicial (1) after ar- 24-hours earlier of later than event (2) your first session of court after rest or or, has where an arrest upon arrest a warrant warrant, of the first session been made without a is filed. At that charging court after the document required officer is to appearance, judicial charging document provide you copy with a are you you and inform each offense with which your rights charged; required you he is to advise counsel; release pre-trial he is to make a determination; he is to make determination your cause probable whether or not exists detained; having you he is to advise of a been set; preliminary hearing if one is to be he is to set notify you you date that will and time for trial Clerk, or, appropriate be so in an advised hearing; preliminary case set a time and date for a certify papers and shall and transfer appropriate court. you

Do understand what I have told T.L. you?_YES you your right

Do waive to an immediate initial delay until agree appearance that In the event completion of this interview? you do agree you may request so time you will then be terminated and interview unnecessary officer without before

taken delay. T.L. YES (1) you have a You are further advised (2) anything you say can and will be remain silent (3) you in a court law have a against you used you and with right lawyer to talk to a to have him (4) lawyer, you if afford a during questioning cannot you a statement one will be before is appointed (5) you if you give if decide to a taken wish you stop statement have the still to you you lawyer. talk to Do may time so a just I have your rights understand and what YES T.L. explained you?. to without a you Are make a willing to statement YES time?_ lawyer at this doing? are you know you and what Do understand YES been threats, or inducements any promises,

Have this making you into coerce pressure made NO statement? indicated, signed and answer

Logan initialled each fifteen his surrender to at the within minutes of form bottom waiver, following police. Immediately interrogation him that he was Logan began. police officer told enterings numerous breaking and which suspected entrance, twenty and after keys master used to obtain were twenty-five stated that questioning, petitioner minutes of shove, [breaking I will to this one push comes to confess "[i]f Twenty questioning minutes entering].” and of additional Logan police be for the when then proved fruitful that crime. When asked to having confessed to committed demeanor, the physical on and mental Logan’s comment officer, hearing, suppression at the stated interrogating sober, With quite calm. Logan appeared rational and of a initial its determination that waiver in this permitted Logan and that case voluntarily knowingly, intelligently and waived his M.D.R. rights, as well as his Miranda circuit court and, Logan’s suppress consequence, denied motion to as a evidence at on the Logan’s confession was received into trial merits.

Petitioner Banks was arrested Officer Tucker at 1:45 hiding a.m. after ferreted out of his having been bitten and place police arresting placed canine. The officer Banks cruiser, in a him Miranda police rights, advised of his transported suspect police to a station to check for gunpowder traces on his hands. He was then taken to a hospital dog for treatment of the minor bite suffered at the arrest, time police department’s from there to the Forestville, investigation Maryland. bureau located in Upon a.m., Banks, his arrival there a few minutes after 3:00 Ferriter, unmanacled, custody of Detective was taken into interrogation again room and searched. He was advised of his rights, Miranda inquiry to an whether response him, he just understood what was told Banks nodded his affirmatively. head sought Detective Ferriter then Banks, particular items of personal information from which the suspect furnished. It appear period would that a short time transpired Jones, before the chief Detective case, investigating assigned joined detective to this Banks and read to him substantially from a waiver form identical the one to Logan.4 submitted The detective recorded the Banks, supplied by answers to the various as and questions signature the accused initialled affixed his each answer and to the bottom of the form at 4:14 a.m. Banks then waiver statements, inculpatory made which were reduced to later, writing, and objection, over his admitted as evidence in his trial. only 4. The in one waiver of form we deal with here differed minor form, text,

respect read to the previously provided in the and from the set out full in petitioner Logan. petitioner The Banks form did not inform the that officer, judicial you appearance, at the initial "is to advise of a set;” informed, preliminary hearing if as one is to be he was nonetheless was Logan, appropriate [will] that the commissioner "in an case set a time and preliminary hearing.” date for a us, the records in the two cases before Having examined described, just we have we cannot the essence of which determination, trial factual conclude that court’s voluntarily case, knowingly either that waiver was and clearly true erroneous. It is petitioner, executed case, delay, apparently that in Banks was a short there hour, time lasting than about half an between the no more brought investigative bureau for petitioner was to the interrogation of his initial prompt and waiver a suspect right to a appearance. While a waiver a of his ordinarily prompt judicial before a officer presentment retroactively objection based operate would not to foreclose detention, delay preceding illegal perceive on a we the short with case, involved in the Banks combination particularly coercion, to be complete absence of indications that and Banks insignificant. Logan The records do disclose he as to information each were informed the nature initial would from commissioner at his receive told, that appearance, that each what he was understood interrogation each was informed that he could terminate the so, any time, if would before a he did he be taken each, judicial delay, and that the petitioners officer without a M.D.R. 723 orally writing, both waived the However, faced appearance. of a initial that the suggestion with a dearth of evidence supporting knowingly, waiver in each of cases was not these with intelligently voluntarily given and in fact (sufficient contrary to authorize substantial evidence proof that the has met its determination State burden seen, regard), principally argue, we have petitioners Additionally, type that this of waiver is initio ineffective. ab void, the two assert even if it is not thus such petitioners officer, only validly a waiver can made two addressing not to a the latter of these police officer. are arguments, note that above facts preliminarily we the normally a valid waiver of support sufficient privilege right constitutional to counsel and fundamental Arizona, U.S. self-incrimination, Miranda v. against see (1966). Moreover, 1602, L. Ed. 2d 694 86 S. Ct. "that conclusions we observe 'be of a search scope and the cause concerning probable being magistrate instead of detached by neutral and drawn a competitive in the often engaged by the officer judged ” Sanders, 442 crime,’ Arkansas v. ferreting our enterprise of (1979) 2586, 61 (quoting 753, 759, 99 L. Ed. 2d 235 S. Ct. U.S. 10, 14, States, 68 S. Ct. v. 333 U.S. Johnson United 92. by the consent of the (1948)), relinquished L. Ed. 436 can be tendered, normally long before such consent is suspect, and police to the magistrate, a neutral presence his before search. See Schneckloth conducting officers Bustamonte, 36 L. Ed. 2d 854 682, 683, (1973); Warden, 243 Md. A.2d Mathis v. of a view, holdings In if under these the consent our officers can effect a waiver suspect given police

criminal constitutionally reposed are responsibilities of the rights, to fourth amendment we judicial regard officers with logical basis the waiver of fail to see on what similarly be made to cannot M.D.R. 723 a requirement of preliminarily informed of suspect was police officers. That only judicial officer is rather than police his in connection with to be considered a factor alone, destroy not issue, and, standing does voluntariness waiver.5 See prompt appearance the effectiveness 120; Poole, F.2d at Frazier supra, 495 United States v. 1166 n.24. States, 419 F.2d at supra,

United here, present suspect not 5. in the circumstances does We note that a right judicial officer nor does he waive his waive to be taken before (as pursuant promptly, right subsequent but speed to M.D.R. 723 b to be informed that officer here), interrogation, was each accused taken informed merely, police interrogation, purposes of reasonable waives the appearance Consequently, must occur. each with which the initial person upon duty petitioner take him before the did his waiver to the whom the here address — Moreover, judicial police. we note officer rests cases, petitioners only that in the waived their circumstances of these unnecessary delay without and in to be taken before a officer hours, right to no event later than 24 an initial if and thus intended no waiver of their whether, thereby after that time. We do not reach so, conditions, upon suspect can waive his M.D.R. 723 a what event, beyond waivers here period. any does contend that the the 24-hour State beyond encompassed time 24 hours. IV address, The next contention we shall one which is raised by Logan, from the solely imposed arises sentence petitioner Judge larceny for and by housebreaking Fisher the sentence, judge, The stated that the imposing convictions. give court be blind if it were not to some "would the consideration to other offenses which confessions is going give [T]he were obtained.... Court these by statements some minimal consideration.” It was conceded trial, Court, it that the as was before this the State Judge the six to which housebreakings, confessions to other referred, unconstitutionally Fisher were obtained as result petitioner illegally the seized set of master display of of the keys. Logan urges imposed this Court to vacate sentence because, view, any of in his with the absence here of the rule exclusion well-recognized exceptions, requiring the of any unconstitutionally applies evidence obtained trial; thus, being part it of the he sentencing proceedings, by error posits Judge Fisher committed reversible any giving illegally obtained confessions consideration such agree. whatsoever. We do not cannot, clearly not petitioner dispute, does he virtually in this is sentencing judge State a vested with sentence, any He which may impose boundless discretion. punishment proscribed by cruel Article 16 and unusual Maryland Rights, of and which is within Declaration (if be), there statutorily imposed any limitations by proven determined to be deserved for or necessitated question. criminal In the of this pursuit conduct duty, range indispensable often a broad perplexing but may judge as an aid information mustered Thus, determination. may past sentencing judge inquire into

criminal record of the defendant hear evidence reports aggravation mitigation receive judge limited punishment; inquiry is not exercising [In] . .. the strict rules evidence. him, procedural policy discretion vested encourages him to consider information State concerning person’s reputation, past the convicted offenses, habits, health, mental and moral propensities, background social other matters that him in judge ought to have before determining imposed. the sentence that should be 175, 193, 297 A.2d Md. Bartholomey v.

696, (1972); State, 706 see also Purnell v. 241 Md.

582, 585, 298, (1966); 217 A.2d 299-300 Skinker v. State, 234, 237, 716, 239 Md. 210 A.2d 717-18 (1965).]

In considering proper punishment, what it is now judge well-settled in this State that a is not limited to reviewing past judicially conduct whose occurrence has been established, may but view "reliable evidence of conduct criminal, may opprobrious although which not as well as details and circumstances of criminal conduct for which the State, person Henry has not Md. been tried.” (1974). 147-48, Indeed, acquittal 328 A.2d since an necessarily does establish untruth of all evidence defendant, "sentencing introduced at the trial of the judge may also consider reliable evidence properly concerning surrounding the details and circumstances Id, charge person criminal of which a has acquitted.” been This broad discretion appraise to multifarious information from multitudinous sources has for time been some recognized requisite necessary be both a and a desirable prevalent philosophy of individualized penal modern York, 241, 247, punishment. See Williams v. New (1949). Thus, Williams, 93 L. Ed. 1337 Mr. in speaking Supreme Justice Black for the United States Court, cogently that: observed

To of kind of deprive sentencing judges this penological information would undermine modern cautiously procedural policies that have been adopted throughout the nation after careful experimentation. consideration ...

determining whether a defendant shall receive a twenty-year maximum

one-year minimum or a sentence, do not think Federal Constitution we judge of to the sentencing restricts the view the due-process court. The open information received in for freezing not be treated as device clause should in the mold procedure sentencing the evidential procedure. due-process trial So to treat clause — state and preclude hinder if not courts would all. — making progressive from efforts federal justice. [Id. administration of criminal improve the 249-51.] model of widespread acceptance conceptual justice system has few function of our detractors penal being placed on paucity resulted in a of restraints has punishment, possessing responsibility impose judge himself with mental blinders and lest he be "forced to bridle with imposing impaired sentence process thus enter the 274 Md. A.2d vision.” Johnson Consequently, we stated Johnson that judge cannot sentencing responsibility awesome ordinarily upon appellate review unless reevaluated consideration, or upon impermissible sentence is based 538, 114. Id. 336 A.2d at in of a statute. at imposed violation considerations, see Gardner examples impermissible For Florida, 349, 358, 1197, 51 L. 2d 393 97 S. Ct. Ed. v. 430 U.S. (due (1977) sentencing proceeding); to process applies 443, 448-49, 589, Tucker, U.S. 92 S. Ct. v. 404 United States (sentence (1972) on part previous 2d based in 30 L. Ed. 592 invalid); to North in counsel conviction violation 711, 2072, 2d Pearce, 89 S. 23 L. Ed. v. 395 U.S. Ct. Carolina (limitations (1969) following resentencing on reversal 656 1369, 23, 421 State, A.2d v. 289 Md. appeal); Briggs on (1980); Article Code, Proceedings Md. Judicial Courts and (limitations (b) (c) Vol.), on (1974, 1980 § 12-702 Repl. trial de following on resentencing appeal, reversal Court); Johnson v. after from District appeal novo (failure of 542-43, supra, 274 Md. 336 A.2d at then, perspective guilt). defendant to Placed admit lay Court another petitioner seeks have this Logan to sentencing judge vision of on the peripheral occlusion is unconstitutionally confession procured that an by urging attempts Logan to "impermissible one consideration.” such contending that by to this conclusion lead us to the federal exclusionary fourth amendment rule of the 1684, Ohio, 81 S. Ct. 367 U.S. constitution,6 Mapp see denied, 368 U.S. 871 (1961), rehearing 2d 1081 6 L. Ed. solely "guilt determination” (1961), to applicable is phase. trial, sentencing but also to of a criminal stage judicially-created exclusionary rule is The purpose Its repair. not to prevent, "calculated to policy — guaranty for the constitutional compel respect to deter n — removing the way only effectively available in the States, 364 U.S. Elkins v. United disregard it.” incentive (1960). Over the 206, 217, 1437, 4 L. Ed. 2d 1669 80 S. Ct. century ago in close to a that rule’s nascence years since 524, 29 L. Ed. States, 116 U.S. Boyd v. United rationales, (1886), least two additional appears it that at deterrence, support have been advanced than other of the in violation evidence obtained application to rule’s first, as the referred to in Elkins fourth amendment. which is that sit judicial integrity,” "imperative of "Ldourts party and will not be made Constitution cannot under our of citizens invasions of the constitutional lawless the fruits of governmental use of permitting unhindered rule exclusionary application [A]n such invasions. ... Ohio, Terry v. imprimatur.” the constitutional withholds (1968). The 1, 13, L. 2d 889 Ct. 20 Ed. 392 U.S. 88 S. clarity expressed was with remaining purpose additional Calandra, in United States Mr. Brennan’s dissent Justice (1974), L. Ed. 2d 561 S. Ct. fostering popular perceived rule is which the focus of the by assuring the government for and trust respect from their profit would not that the authorities populace court, Special Although proceedings in the trial in the Court 6. contention, Appeals we conclude federal causes, his the breadth of are silent as to and before this Court regard application Logan’s in this is on the reliance rule, exclusionary applies of state criminal to the conduct as it support only on federal authorities he and relies because cites position. that aptly recognized behavior. It is now lawless exclusionary rule "is of reasons for the exploration of the concern, [Supreme] for the Court’s academic more than and, the scope will determine purposes of these perception LaFave, exclusionary rule.” W. ultimately, the fate of the Seizure, Amendment A Treatise on the Fourth Search Thus, of the (1978), 1.1, § central to the resolution p. 18. — raises for our consideration petitioner which issue sentencing rule should be extended whether — increasing an perceive to be is what we proceedings on the deterrent function as by the Court emphasis Supreme Michigan In sole, for the rule. justification if not prime, 41 L. Ed. 2d 182 Tucker, 94 S. Ct. 417 U.S. (1974), imperative proffered it was of the more really "is an assimilation integrity rationale opinion, in the text of this discussed specific rationales basis for independent provide does not in their absence n. 25. In United Id. at 450 excluding challenged evidence.” 49 L. Ed. 2d Janis, States v. 428 U.S. (1976), 'prime purpose’ declared that "the the Court rule, one, police 'is to deter future unlawful if not the sole ” Calandra, United States v. (quoting conduct.’ Id. at 446 from 347). Review Tenth Annual Project, generally supra at See Supreme Court and of Criminal Procedure: United States 1979-1980, Geo. L. J. 305-09 Appeals Courts of then, exclusionary rule "is not to follows, that the It mechanically. imposed in a vacuum nor ... administered purpose.” It should be of its deterrent United applied light 1975). (9th Vandemark, Cir. F.2d States v. device, of the rule has application "As with remedial objectives been restricted to areas where its remedial those thought efficaciously are most served.” United States Calandra, supra keeping narrowing at 348. with this rule, utility of the conception application consistently extend reach Supreme Court has refused to its beyond traditionally purview. the area within the rule’s 2439, 65 727, 100 Payner, Ct. L. E.g., United States v. S. (1980) (federal supervisory Ed. 2d 468 court’s inherent by bad faith power not utilized to exclude evidence obtained

485 United rights); constitutional hostility party’s to third 1912, L. Ed. 2d 620, 100 64 Havens, S. Ct. 446 U.S. States v. illicited (1980) of defendant of statement (impeachment 559 Calandra, cross-examination); v. United States

by proper (1974) (grand 613, L. Ed. 2d 561 338, 38 S. Ct. 414 U.S. 94 222, 91 S. York, U.S. New 401 Harris v. proceedings); jury (1971) Alderman (impeachment); 1 28 L. Ed. 2d Ct. 961, 22 L. Ed. 2d 176 Ct. States, 89 S. 394 U.S. United States, 394 U.S. denied, United Ivanov v. (1969), rehearing (1969) (use of than victim other against person violation). constitutional exclusionary rule to apply the considering whether to

In in Calandra, engaged a the Court in grand jury proceedings the injury to potential weighing the balancing process, jury grand proceeding the role and function historic in that context. exclusion potential the benefits against in framework analytical the same Adopting Id. 349-52. hearings, sentencing rule to considering application in from gain deterrence that the incremental we believe the forfeiture utilization, with compared when rule’s crucial sentencing officer of depriving inherent per application se information, slight justify is too prohibiting While sentencing proceedings. the rule determining unreliable a proper evidence consideration of fairness, well-founded concern basic sentence stems from Tucker, 92 Ct. S. see United States v. Burke, (1972);

L. Ed. 2d 592 Townsend U.S. (1948), illegally-obtained "[m]ost 92 L. Ed. 1690 S. Ct. such, clear As inherently ... is not evidence unreliable.” sentencing judge’s information to relevance of this level of significant that there must exist inquiry dictates the rule to extension of support per se deterrence elusive. deterrence is sentencing proceedings; such of the federal panel for a Judge speaking words of Winter Appeals: fourth circuit Court of rule extended exclusionary

[I]f the were case, its additional ordinary in the sentencing minimal as to be be so deterrent effect would insignificant. Generally, law enforcement officers conduct searches and seize for purposes evidence — prosecution and conviction not for the purpose increasing prosecution already sentence yet pending they or one not If are to be begun. lawlessness, deterred from official it seem would only obvious that effective deterrence prosecution arising threat out of the they search and specific seizure which acted illegally would be rendered ineffective. The might additional threat that a future sentence they unlawfully less severe because acted can be have predicted practical to little effect to accomplish objective. main [United its States v. (4th Lee, 1976), 540 F.2d 1211 Cir. cert. (1976).] denied, 429 894 U.S. agree,

We accordingly usually conclude that the stricture of this Supreme Court doctrine not extend does to Accord, of a sentencing stage criminal cause. United (9th Vandemark, 1975); States 522 F.2d 1019 Cir. United v. Schipani, affirmed, States 315 F. 435 Supp. F.2d 26 (2d 1970), denied, (1971); Cir. cert. U.S. 983 401 State v. (1974) (en Jones, banc), 110 521 Ariz. P.2d 978 cert. denied, (1974); Swartz, 419 U.S. 1004 State v. 278 N.W.2d 22 (Iowa 1979); Banks, State v. N.J. Super. A.2d (1978); Campbell, State v. Or. App. 607 P.2d 745 add, however, We showing that where has been made that at sentencing illegally consideration obtained illegal evidence an provides incentive for official activity, exclusionary may rule well be applicable. Such may incentive readily be most shown proof unconstitutionally by police obtained evidence was seized officials "with a view enhancing toward the defendant’s Accord, Lee, supra sentence.” United 1212. States v. at Vandemark, 1023-24; supra United States v. State Swartz, supra, 278 N.W.2d at 26. There no indication being record illegal this obtention of six influencing confessions was motivated for the purpose sentencing judge, we that pursuant conclude to the him, Judge Fisher could and did vested discretion confessions. consideration accord some properly V that he was neither complains Banks

Lastly, petitioner under Rule 772 d of nor afforded informed That Rule directs: personally allocute.

d. Allocution. inform the court shall imposing

Before sentence personally and right, has the the defendant that he counsel, and to make statement through mitigation punishment, present information to exercise opportunity and the shall afford court right. answer to this contention made Banks is that short exists, in, failure, if brought in fact was raised one court; thus, of, upon by attention the trial ruled court appellate issue was not the intermediate before before this Court. Rule 885. See Bennett now 406, 411-12, Md. 24 A.2d sentencing hearing The record reveals that counsel, conviction, following petitioner’s after witnesses, at the time for presenting two character allocution, thoroughly competently and made mitigation in of impassioned on Banks’ behalf plea by trial punishment. judge inquiring: This was followed from?” "All to be heard right. Does Mr. Banks care in the of his reply by presence was made defense counsel objection no or other client: "No Your Honor.” To this answer defendant; nor, register by of made disagreement was sentence, any objection imposition after the was there noted, any proceedings motion to strike the sentence present appellate to to an properly question initiated Thus, review of appellate Banks forfeited his to court. State, supra. the allocution Bennett issue. however, note, ruling that this will

We not deprive possible of all recourse in his petitioner effort to have his designated duration of punishment reduced since the propriety imposed of the sentence subject remains revisory power the trial court under Rule and analysis Act, under Review of Criminal Sentence provided (1957, Md. Vol.), for in Code Repl. Art. — §§ 645JA 645JG and Rule 773. will

Accordingly, judgment we affirm the the Court case, Special Appeals petitioner Logan’s and will affirm part part judgment pertaining reverse court’s petitioner Banks’ cause.

Judgment of the Court Special Appeals in No. 24 affirmed. paid Costs to be Theodore Russell Logan.

Judgment of the Court of Special Appeals in No. 36 vacating the imposed Eugene sentence on reversed, Jerome Banks but in all affírmed, respects other and case remanded to that court with instructions affirm the judgment embodying conviction sentence entered Circuit Court for George’s County. Prince by Eugene Costs to be paid Jerome Banks. J.,

Eldridge, dissenting: Maryland Rule policemen 723 is addressed to District judicial officers, and, mandatory language, imposes it procedural requirements upon various public those procedures officials.1 designed These are a insure that Maryland July 1. Rule District as amended effective provides entirety: in its defendant, arrest, after is informed of certain soon criminal any rights and that waiver these substantive substantive Appearance. 723. Initial "Rule Arrest. a. After pursuant A defendant who is detained to an arrest shall be taken judicial unnecessary delay A before a officer without no event charging later than 24 hours after arrest. promptly document shall be filed already if after arrest not filed. b. Procedure. defendant, judicial At initial of the this section. officer proceed provided in shall as Charges. 1. Advice of provide judicial copy The officershall the defendant with a of the document, charging shall inform the defendant of each offense with charged. already provided, if he has not been so he which is Right 2. Advice of to Counsel. judicial require officershall the defendant Loread the advice printed document, charging Document Content of accordance with General to counsel on the — — (Charging M.D.R. a Requirements), or shall read that advice to the defendant if the defendant is illiterate or for other reason unable to read judicial certify writing advice himself. The officer shall the defendant has read the advice as to presence, the case counsel defendant, or that he has read that information to the may be. 3. Pretrial Release Determination. Subject judicial to subsection 4 of this section the officer promptly eligibility pretrial shall determine the defendant’s (Pretrial Release). pursuant release M.D.R. 721 4. Probable Cause Determination. warrant, When a defendant has been arrested a without judicial may impose pretrial officer not conditions of release which impose significant liberty a restraint on the of the defendant until judicial probable officer determines that there is cause to judicial believe that the defendant committed an offense. If the cause, probable officer on his own find does not defendant shall be released recognizance significantly under terms which do not liberty. restrain his Preliminary Hearing. 5. Advice of charged felony When a defendant has been with a which indicted, jurisdiction within the of the court and he has not been judicial the to within ten request officer shall advise the defendant that he has request hearing request preliminary if the is made then or days timely thereafter and that his failure to make a preliminary hearing. will in the of a result waiver Preliminary Hearing 6. Trial or Date. defendant, appearance of the if the offense is At the initial court, jurisdiction judicial within the officer shall set the trial, notify date and time for advised the defendant that he will be so felony the clerk. If the offense is a which is not within jurisdiction and the defendant the time of his of the court appearance requests preliminary hearing, initial officer shall set the date and time for the preliminary hearing, or notify the defendant that he will be so advised the clerk. voluntary. knowing Among requirements is duty imposed police M.D.R. is the on the to take the of unnecessary judicial defendant "before a officer without M.D.R. 723 delay.” original adoption (previously Since the 709) consistently in Court has taken numbered prompt presentment that the in position requirement mandatory, "any a of the rule is and that subsection otherwise, statement, an voluntary or obtained from . unnecessary delay in during period producing arrestee v. judicial him before a officer” is to be excluded. Johnson (1978). State, 314, 328, 329, 282 Md. 384 A.2d See State, (1980); 419 A.2d 369 also McClain v. 288 Md. (1979). 705, 717-718, 285 Md. 404 A.2d 1073 Lewis cases, defendants, unrepresented In the two at the present time, only, in officers presence police after arrest and recited so-called signed police initialed and form which requirements warnings, Miranda summarized some affirmative police-recorded of M.D.R. and contained a an you your right "Do waive question: answer to the of this appearance completion immediate initial until today by initialing interview?” The Court holds forms, each defendant "waived his signing answers right” judicial to be taken before a officer "without that, therefore, unnecessary delay,” and confessions taken periods unnecessary delay were admissible.3 during c. CertiGcation of Judicial Officer. certify writing complied judicial in that he has The officer shall with this Rule. Papers d. Transfer of Clerk. practicable after the initial As soon as defendant, judicial papers file all with the clerk of officer shall they to the circuit court the court or shall direct that be .forwarded charging if is filed there.” document Arizona, 2. Miranda v. 16 L. Ed. 2d 694 only 3. It should be noted that the Court holds the "without unnecessary delay” requirement of M.D.R. 723 a can "waived” the the manner other which occurred these cases. The Court does not hold that a, namely of subsection that the defendant shall be taken arrest,” judicial before the officer "in no event later than 24 hours after is subject us, argument to "waiver” in the same manner. In oral before expressly State later conceded that the to be taken to a officer no manner, 24 hours after could not be "waived” in this than arrest that 24 remain limit.” hours would the "outside view, holding, my with our opinion This inconsistent State, supra. majority overlooks the Johnson purpose recognize nature and of M.D.R. 723 and fails to important rights” difference between a waiver of "Miranda procedural requirements and a waiver of the contained in M.D.R. 723. language

The literal of M.D.R. 723 does not confer itself Instead, "rights” upon a defendant which are his to "waive.” out, previously pointed imposes mandatory as the rule Nevertheless, upon police judicial agree duties officers. I that the obligation police, of the under subsection a of the rule, judicial to take an arrestee before a officer "without unnecessary delay,” has the conferring upon effect of the arrested defendant a presentment. Moreover, I accept proposition, as set forth the Court Johnson, 282 Md. at subject to a knowing and intelligent My waiver.4 disagreement with the majority is over what light constitutes such a waiver in purpose nature and of M.D.R. 723. view, however, involving 4. For a signing different in a case of a (7th form, Haupt, similar waiver see United States v. 136F.2d Cir. 1943), court, decision, ground where the as an alternate for its stated (emphasis original): phase waivers, government "On the second of these so-called upon may rights relies to trial cases that an individual waive such by jury, counsel, speedy trial, to advice of to a to be against cases, however, confronted with witnesses him. In all such waiver, wherein it has been held that there was or could be a provision considering court rights was which defined the of the cases, individual. In both the McNabb and Anderson the court arresting considered statutes that defined the duties of officers. may How can it be said that one under arrest the duties waive imposed by upon arresting permit law To so officer? would arresting upon dependent mean that the duties officer were person, upon the action of the than arrested rather action Congress. case, statutory requirement might readily In such merely obtaining person nullified from the arrested so-called custody.’ 'waiver of ...” later, years appeared position, A few Circuit to take Ninth the same 1945), (Dainard (9th saying 326 U.S. Johnston, denied, 149 F.2d Cir. cert. (1946)): 90 L. Ed. 474 appears signed paper upon "It that Dainard ... its face purporting magistrate. importance necessity being to waive the of his taken before a regard great We do not this circumstance as of duty disposition proceeding. in the of this The officers’ cannot be so avoided....” reviewing M.D.R. this Court in Johnson v.

supra, initially stated that "the purpose of the rule is to insure that an accused will be promptly afforded the full panoply safeguards provided at the appearance.” initial 282 Md. at 321. The Court then summarized the "procedural components” rule, of the pointed to several substantive procedures which the designed were to protect, and emphasized the role of the District Court commissioner aas (id. judicial neutral 321-322, officer emphasis supplied): "The procedural components initial appearance are set forth in M.D.R. 723 b. Chief among these protections is the constitutionally compelled requirement of M.D.R. 723 b 4 that all persons arrested without a warrant be afforded a prompt hearing at which a neutral officer must determine probable whether sufficient cause exists for the continued detention of the defendant. equal ... Of importance provision is the of M.D.R. obligating 723 b 3 a commissioner at the initial appearance to make a determination eligibility defendant’s pretrial release .... "A third function of the initial is to every inform the accused of charge against brought him counsel, and, and to inform him of his right to if indigent, to have counsel appointed for him. .. . Further, where the defendant charged has been felony with a over which the District Court lacks subject jurisdiction, matter the commissioner conducting the appearance notify initial must the accused of right... request preliminary his a full case, present majority In the Haupt opinion the states that the has "sparce acceptance, all,” citing Grote, received if at United States (2d 1944), F.2d was no S. Ct. disagreement Haupt Cir. indicating and a law review note longer Mitchell, authoritative after United States v. Although 88 L. Ed. 1140 the court in Grote indicated Haupt, with the decision itself is not conflict as Grote’s police prior statements were made to the to his arrest. Mitchell did not question, involve a of during period waiver and the confession was not made illegal fact, unnecessary delay. Supreme Court Mitchell cited Haupt application as an of the McNabb doctrine which the Government did challenge. 322 U.S. at 68. request forthcoming, If hearing. ... such a time assign a date and must commissioner the crime is Finally, where hearing.... preliminary jurisdiction, District Court’s one within the fix the date for judicial officer must presiding ... trial. M.D.R. 723 b procedural requirements

"The fundamental in substantial fashion several bolster right including the of a guarantees, constitutional against informed the accusation defendant be .; free from unauthorized right him .. to be ...; the person his unreasonable seizures of ..., and to have counsel allowed counsel as well as the due indigent..., for him if appointed investigatory from right to be free coercive process methods....” (id. 323, emphasis supplied): at

This Court then concluded impartial after arrest assures "Prompt presentment rights the defendant’s at the judicial supervision of Accordingly, we possible stage earliest detention. presentment hold that prompt mandatory was therefore M.D.R. 723 a is in the instant case.” binding police on the defendants "waived” their Today, holding that the only the by signing a form before prompt presentment role of majority the central the neutral police, the overlooks is not if of the rule satisfied purpose officer. The ultimately judicial officer informs the defendant of various Instead, just years Court three rights. as made clear Johnson, to assure ago designed "impartial the rule is rights earliest judicial supervision of the defendant’s majority possible stage of 282 Md. at 323. The detention.” "effectiveness today states destroyed "a was suspect waiver” is not because police rather preliminarily informed of This, effect, upholds the judicial than a officer.” judicial the officer. It policeman substitution of the totally reflects a M.D.R. is view of 723 which at odds with the purpose nature and of the rule set forth in Johnson v. State. The majority opinion places great reliance the upon Johnson, statement may 282 Md. at that a defendant waive right However, to a the appearance. majority ignores context of the statement in Johnson concerning and the underlying reasoning waiver in Johnson. The statement in Johnson waiver in the regarding was made context holding of a that the does rights waiver Miranda right not waive the under a to brought Rule 723 be promptly judicial before a at officer. 282 Md. 330-332. The initial reason for holding policeman was that not a Thus, substitute Judge for the officer. Levine stated (id. 331-332, for the Court in Johnson emphasis supplied): argument [that "This waiver Miranda waives the prompt presentment] our opinion is based on a false premise, Miranda prompt presentment have a purpose. common The fact of the matter is that supplant Miranda was never intended to rule, Mallory as the Supreme Court itself acknowledged opinion. the Miranda Miranda v. Arizona, jurist 32. at 463 n. One has commented that it is treat unsound to Miranda and Mallory closely related, since former is a qualitative test of circumstances interrogation, while the focuses on latter delay. States, time duration of Frazier v. United J., 419 F.2d (Burger, dissenting). at 1171 sure, "To one important function of the initial is to advise an arrestee of his counsel; partial to this extent overlap there is so, with Miranda. Even it been convincingly has argued typically perfunctory reading warnings by police Miranda at the time of arrest may provide be insufficient accused with notice of adequate rights; his constitutional that a exists for advice of follow-up need the basic

495 court, by neutral officer the to counsel right by M.D.R. 2. provided is 723 b such 241, 451 Pa. Tingle, v. 301 A.2d Commonwealth (1973). Note, 309, Dick. L. 701, 79 Rev. 348 703 (1975).” today effectively above-quoted

The overrules the Court by reasoning Judge What was said holding and Johnson. instant cases. equally applicable the Levine Johnson the were paragraphs more attached Although two here, alleged nevertheless each warnings standard Miranda perfunctory reading” "typically still based on a "waiver” was police. no 282 Md. at 331. There was warnings court,” id. at "by a officer of the prompt follow-up neutral he is sign reciting who a form that Any 332. defendant will and that he does not want willing to make a statement likely lawyer (i.e., rights), most the waiver of Miranda will sign indicating of the language the form with addition being make the taken he will statement without today’s a District commissioner. With promptly to Court decision, department Maryland, by modifying every police form, ignore duty Miranda its to take legal standard can defendant to a officer "without arrested unnecessary delay.” body is a majority

The observes that "there substantial judicial authority from jurisdictions” other which holds that a prompt presentment like that in M.D.R. 723 This, course, a can is not the dividing be waived. issue accepted Court today. It is defendant’s waived; can prompt presentment real issue concerns However, what on constitutes waiver. cases relied are, which, jurisdictions for the from majority part, most Johnson, rights a waiver of contrary to hold that Miranda prompt presentment. waiver of See amounts to a (9th X, 585, Boy Indian 565 F.2d Cir. United States v. 591 1977), denied, 841, 131, 2d 439 58 L. Ed. U.S. cert. (9th 169, (1978); Lopez, 139 United 450 F.2d 170 States v. 931, 985, L. Ed. 1971), denied, Cir. 92 S. 30 cert. 405 U.S. Ct. 1161, 1166 States, (1972);

2d 419 F.2d 805 Frazier v. United (D.C. 1969); Pettyjohn States, Cir. v. United 419 F.2d (D.C. 1969), denied, 656-657 Cir. cert. 90 S. (1970); Weaver, Ct. 25 L. Ed. 2d 676 People v. (1972) (en 331, 334, Colo. banc); 500 P.2d Hawkins (D.C. States, 1973); United 304 A.2d Richmond 1976). (Wyo. 554 P.2d if Consequently, fully viable, Johnson is to remain cited cases furnish no support for the decision in the instant cases.5 opinion Court’s treats the waiver M.D.R. 723 situations, like most stating other waiver that if various substantive can be rights by signing waived a form a before policeman, right presentment under Rule 723 can "similarly made police majority, to officers.” The citing Arizona, points Miranda v. out that the circumstances of the present cases "are normally sufficient to support valid waiver of the right fundamental constitutional to counsel and privilege against self-incrimination.” This approach, view, my overlooks essential difference between the so-called waiver of Miranda other rights or fundamental rights procedural "rights” and the waiver like those under M.D.R. 723. Arizona, Miranda Supreme Court mandated

particular procedure protect right to an arrested defendant’s against self-incrimination and counsel. 384 at U.S. 444. Although indicating underlying that the substantive rights involved could be waived defendant’s answers police, 444-445, to the at say id. the Supreme Court did not that procedure could be in a waived like manner. There was defendant, no that an suggestion unrepresented lay signing form, could policemen relieve the custodial of their obligation thereby to follow required procedure, itself, acknowledged position contrary 5. In Johnson we our that was courts, majority the federal courts ... [lower] of state Md. "[e]ven that jettisoned per exclusionary all but have se rule in cases,” array Despite the view we favor of a voluntariness standard in all ibid. n. 5. contrary authority, we were that there convinced in Johnson adopted, following Supreme Mallory the lead of the United States Court in States, (1957), v. United U.S. 1 L. Ed. 2d 1479 States, (1943), McNabb v. United 63 Ct. 87 L. Ed. S. position. was the sound "waiving” "right” procedure. the defendant’s to that On the only contrary, the Court indicated that the alternatives to "fully were means that would be as procedure the mandated Consequently, effective” to attain the same results.6 when a rights, speaking court refers to a waiver of Miranda it is rights against a waiver of the substantive self-incrimination and to "right” counsel and not a waiver defendant’s compliance procedure. have with the Miranda I am aware of holding procedure required by no case that the Miranda was "waived” under be analogous circumstances would the facts of the present cases. statutes,

Many prescribe other rules or court decisions procedures designed to inform a criminal defendant of rights, thereby insuring fundamental waiver of voluntary, knowing those fundamental is intelligent. Very procedural requirements go often the beyond constitutionally necessary. what example, For Maryland imposes mandatory Rule 735 detailed procedural requirements upon judge, a trial for the purpose insuring that a jury defendant’s waiver of his fundamental to a voluntary, knowing trial is and intelligent. Rule like 723, grants M.D.R. procedural rights a defendant going beyond requirements constitutional for waiver of the (394 Supreme 6. The 444-445, Court thus stated in Miranda U.S. at emphasis supplied): procedural safeguards "As for fully employed, the to be unless other persons effective means are devised to inform accused of their right of opportunity silence and to assure a continuous to exercise it, following required. the any measures questioning, are Prior to person the that him, right silent, must be warned that he has a to remain any may against statement he does make be used as evidence right presence and attorney, that he has a to the of an either appointed. may retained or The defendant waive effectuation of rights, provided voluntarily, these knowingly the waiver is made If, intelligently. however, any he indicates in manner and at any stage process attorney the that he wishes to consult with an speaking Likewise, before questioning. there can be no if the individual wish to is alone and indicates the manner that he does not interrogated, police may question him. The mere may questions fact that he have answered some or volunteered deprive some right statements on his own does not him of the answering any refrain inquiries from further until he has attorney consulted with an and thereafter consents to be questioned.” State, 286 Md. right. Countess v. substantive submit, I seriously suggest, A.2d one would No validly procedural rights "waive” the a defendant could merely by a form signing Rule 735 requirements under purported of Rule 735 and provisions recited the which under the rule. judge of his duties relieve the trial sum, major difference between majority In overlooks of what rights and the waiver the waiver of "fundamental” requirement "prefatory” calls a majority opinion informed of the the defendant be designed to insure that statutes language of the some right. light fundamental underlying rights and their setting "prefatory” rules forth or would not be likely many rights such it is purposes, rate, anyAt a "waiver” of "waiver.” susceptible considered mandatory procedural "prefatory” with a dispensing of or purpose valid unless the should not be deemed requirement Court stated Supreme is met. As the required there Miranda, only procedure to the exception devised,” 384 fully effective means are be if "other would at 444. U.S. discussed, of the M.D.R. major purpose previously

As arrest is to assure after prompt presentment rights at of the defendant’s "impartial judicial supervision Johnson v. stage of detention.” possible the earliest presentment The prompt Md. at 323. supra, 282 extent, policy reflects to some requirement, reading” a "perfunctory determination that "may provide be insufficient to warnings by police rights; notice of his constitutional adequate accused with by a "neutral follow-up advice” and that a need exists uphold purported To officer of the court.” Id. at 331-332. totally cases present the defendants "waivers” that the suggest This is not to purpose. defeats this if the example, cannot be waived. For prompt presentment by and advised being represented defendant were "waiver” signed police at the time he competent counsel of the court forms, having a neutral officer purpose achieved. rights might well be him of his substantive inform permitting police mandatory But the to avoid prompt presentment requirement of M.D.R. a under circumstances of cases cannot squared these be with the purpose of the rule as set forth in Johnson. suspect

I give many that this Court would not other mandatory "prefatory” procedural requirements the same treatment it gives that of prompt presentment very before a I officer. doubt much that the policeman’s duty to procedure, follow Miranda judge’s duty 735, etc., comply with Rule could "waived” easily. as possible It is treatment accorded presentment requirement by this and other courts from degree stems disagreement with the purposes policies underlying requirement. If general there such (and policy disagreement I do not now intimate views my regarding matter), own remedy the proper is for this constitutionally Court its rule-making authorized capacity, Legislature, or the modify However, the rule. as long rule unchanged, remains require courts should compliance purposes. with its

Judges Cole and Davidson have me authorized to state they concur with the expressed views herein.

Case Details

Case Name: Logan v. State

Court Name: Court of Appeals of Maryland

Date Published: Feb 11, 1981

Citation: 425 A.2d 632

Docket Number: [No. 24, September Term, 1980.] [No. 36, September Term, 1980.]

Court Abbreviation: Md.