Diallo v. State

²⁹ DAVIS, Judge. On December 14, 2007, Abdel Khader Diallo, appellant, was tried upon a “not guilty” agreed statement of facts in the Circuit Court for Baltimore County (Norman, J.) and convicted of first-degree assault and use of a handgun in the commission of a crime of violence. On February 8, 2008, the circuit court sentenced appellant to twenty-five years in prison on the first-degree assault charge, with all but fifteen years suspended and, upon release, to be under supervised probation for five years. As for the conviction on the charge of use of a handgun in the commission of a crime of violence, appellant was sentenced to a concurrent mandatory term of five years in prison, without the possibility of parole.

The core issue raised on appeal addresses the propriety of these criminal proceedings and judgments against appellant in light of appellant’s claim that he is entitled to diplomatic immunity. Appellant presents four questions for our review, which we have rephrased as follows: 1 ³⁰ I. Did the trial court err by denying appellant’s motion to dismiss on the grounds that appellant was not entitled to diplomatic immunity?

II

Did the trial court err by denying appellant’s motion to suppress statements made to the police on the grounds that appellant was not entitled to diplomatic immunity?

III

Did the State fail to comply with its disclosure obligations under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and its progeny?

IV

Did the trial court err by denying appellant’s motion to suppress statements that he made to the police on the grounds that appellant’s confession was knowingly and voluntarily made? For the reasons that follow, we hold that appellant has waived his challenge to the denial of his motion to dismiss. We resolve all remaining questions against appellant and affirm the judgments of the trial court. FACTUAL BACKGROUND Appellant’s trial proceeded upon a “not guilty” agreed statement of facts, the pertinent portions of which we recount infra.

On October 22, 2006, David Reeves, who had recently left a party in Rosedale, with a friend, approached appellant on the street and asked if he was selling drugs. When told that appellant was not selling drugs, Reeves became angry and aggressive. Another individual, who remained unidentified in the proceedings, subsequently approached appellant, offered appellant a handgun and explained that Reeves was carrying a substantial amount of money. Appellant took the gun and pointed it at Reeves.

When Reeves attempted to grab the ³¹ gun, a struggle ensued, during which the gun was fired, wounding Reeves in the neck. Reeves was subsequently-treated at Franklin Square Hospital for his injuries. On October 23, 2006, Detective Ramon Geigel visited Franklin Square Hospital to conduct an investigation of the incident. He soon learned that another individual, later identified as appellant, arrived at Franklin Square Hospital at the same time as Reeves and was treated for a gunshot wound to his chest.

Appellant was later transferred from Franklin Square Hospital to Johns Hopkins Hospital for treatment. On October 31, 2006, Reeves identified appellant out of a photo array as the individual who shot him. Appellant was arrested later that day after being discharged from Johns Hopkins Hospital. At the stationhouse, appellant was administered his Miranda 2 rights and signed a waiver of those rights, ultimately confessing orally and in writing to his involvement in the shooting.

Based upon the foregoing facts, the trial court found appellant guilty of first-degree assault and use of a handgun in the commission of a crime of violence. Additional facts shall be discussed throughout our opinion as appropriate. LEGAL ANALYSIS Appellant challenges the trial court’s denial of (1) his motion to dismiss the charges against him and (2) his motion to suppress statements he made to the police subsequent to his arrest. Appellant’s motion to dismiss was premised on the argument that the court lacked jurisdiction over appellant because he was entitled to diplomatic immunity from criminal prosecution based on the position occupied by his father, Mr. Hama Arba Diallo (the Elder Diallo), 3 a former Executive Secretary of the Permanent Secretariat of the United Nations Convention to Combat Desertification (UNCCD).

Appellant’s motion to suppress was based on two arguments. The claim ³² first advanced by appellant is that his arrest, and his subsequent confession to the police, were illegal in light of his claim of diplomatic immunity. The second claim of error is that his confession to the police was involuntary. In addition to requesting a reversal of the trial court’s denial of his motion to dismiss and his motion to suppress, appellant also seeks to vacate his conviction based on what he characterizes as the United States State Department’s suppression of evidence in relation to the diplomatic status of his father, which should be imputed, according to appellant, to the State of Maryland, affording appellant relief under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) and its progeny.

We address each of appellant’s arguments seriatim. I Diplomatic Immunity—Motion to Dismiss A Waiver Appellant maintains that the trial court erred “when it concluded that [a]ppellant was not immune from its criminal jurisdiction under the Vienna Convention on Diplomatic Relations, the United Nations Convention and other U.S. treaty obligations____” By identifying the “United Nations Convention,” we deduce that appellant is referring to the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1418. We shall hereafter refer to the Convention on Privileges and Immunities of the United Nations as the “United Nations Convention” and the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, as the “Vienna Convention.” We initially observe that, although appellant generally mentions the United Nations Convention in the title to two subsections of his appellate brief, and includes sections 17 through 21 of the United Nations Convention in the pertinent provisions section of his appellate brief, appellant only discusses and explains the significance of specific articles of the ³³ Vienna Convention. In other words, there is no substantive application of any provision of the United Nations Convention anywhere in appellant’s brief.

See Higginbotham v. Public Service Comm’n of Maryland, 171 Md.App. 254, 268 , 909 A.2d 1087 (2006) (observing that we are not required to “to seek out the law in support of a party’s appellate contentions”) (quoting Anderson v. Litzenberg, 115 Md.App. 549, 578 , 694 A.2d 150 (1997)). We further observe that appellant has failed to present, with any particularity, a basis upon which we might review the trial court’s denial of his motion to dismiss. Rather, after (1) mentioning the date on which appellant moved to dismiss the charges, (2) outlining the substance of the State’s opposition to appellant’s motion and (3) reproducing a portion of the trial court’s ruling, appellant sets forth the following legal argument, which we quote in its entirety: The court erred for reasons which will become clear, infra, which error it almost could not avoid: the Department of State was in possession of exculpatory information tending to undercut the credibility of the information in its September 20, 2007 certification[ 4 ] information that also tended to substantially support the [ajppellant’s claim, and evidence it suppressed. Under Maryland Rule 8-504(a)(5), an appellate brief must contain “argument in support of the party’s position.” Rule 8-504(a)(4) further requires a party to include a clear and concise statement of the facts material to a determination of the questions presented, with reference to pages of the record or the transcript of testimony contained in the record.

In the event that a party fails to comply with this Rule, we retain the authority to “dismiss the appeal or make any other appropriate order with respect to the case.” Md. Rule 8-504(c). See also Klauenberg v. State, 355 Md. 528, 552 , 735 A.2d 1061 (1999). Appellant’s argument on this issue, which we have set forth above, comes quite close to conceding that the trial court ³⁴ could not “avoid” error and, consequently, did not err in denying appellant’s motion to dismiss. Moreover, appellant sets forth no authority in support of his argument, pertinent to a trial court’s obligations in ruling upon a motion to dismiss.

Instead, appellant appears to bootstrap his challenge to the denial of the motion, to dismiss to his argument that the prosecution suppressed evidence, in violation of Brady v. Maryland, supra, and its progeny—an argument that we discuss and reject infra. We also observe that appellant has failed to explain or refer to substantial portions of the record relevant to his argument to the trial court and the basis for the trial court’s denial of his motion to dismiss, which we have concluded are critical to determining the merits of appellant’s challenge to the trial court’s ruling on appeal. “[Arguments not presented in a brief or not presented with particularity will not be considered on appeal.” Klauenberg, 355 Md. at 552 , 735 A.2d 1061 . See also Beck v. Mangels, 100 Md.App. 144, 149 , 640 A.2d 236 (1994) (explaining that we may decline to consider the merits of a question presented but not supported by substantial argument). We decline to fashion an argument, on appellant’s behalf, in support of his challenge to the trial court’s denial of his motion to dismiss.

We deem this issue to be waived. We note, however, that even if not waived, appellant’s argument is without merit. 5 To illustrate this point, we set forth a timeline of the arguments advanced sub judice in support of or in opposition to appellant’s motion to dismiss and the basis for the trial court’s ultimate denial of the motion. B Appellant’s Motion to Dismiss On August 13, 2007, appellant moved to dismiss the charges against him, claiming that he enjoyed diplomatic immunity ³⁵ from prosecution based on his father’s status as the former Executive Secretary of the Permanent Secretariat of the UNCCD, stationed in Bonn, Germany. Appellant specifically asserted that this immunity was conferred by three statutes: (1) art.

IV, section 11 of the United Nations Convention, (2) art. 31.1 of the Vienna Convention and (3) sections 288-288Í of the International Organizations Immunities Act, 22 U.S.C. 6 According to appellant, this immunity was accorded to him by virtue of his lather’s diplomatic status. Moreover, appellant asserted that he held (1) a diplomatic passport from his father’s “sending State” and native country, Burkina Faso; (2) expired, but renewable, diplomatic identification from his father’s “receiving State,” the Federal Republic of Germany; and (3) current diplomatic identification from the United Nations. Appellant further posited that, in light of this diplomatic immunity, the court was precluded from exercising jurisdiction over him. Additionally, appellant, inexplicably, never mentions in his appellate brief that he also submitted, in support of his motion to dismiss, an August 9, 2007 attestation by Frank M. Meek, Chief of Administration and Finance for the United Nations Secretariat of the Convention to Combat Desertification, which we set forth below: This is to certify that Mr. Hama Arba Diallo, a national of Burkina Faso, is the former Executive Secretary of the Permanent Secretariat of the United Nations Convention to Combat Desertification (UNCCD), and as such was the head of the UNCCD.

In this position the former Executive Secretary held the level of Assistant Secretary General of the United Nations, which position entitled him to diplomatic status. During Mr. H.A. Diallo’s tenure, Mr. H.A. Diallo’s son, [appellant], was a dependent of Mr. H.A. Diallo and resided with Mr. H.A. Diallo in Bonn, Germany, until [appellant] commenced his college education, and thereafter, he resided with Mr. ³⁶ H.A. Diallo from time to time during breaks in his studies. Copies of an attestation dated 3 July 2002 indicating that [appellant] was a dependent of Mr. H.A. Diallo, a request for home leave dated 07 March 2003, a Personnel Action dated 01/01/2002 indicating that [appellant] is a dependent child, another attestation dated 21 August 2003 indicating that [appellant] was the dependent son of Mr. H.A. Diallo, and a request for Educational Grant Travel dated 20 August 2003 are attached. These documents bear the UNCCD seal and my initials indicating that they are true and exact copies of the original documents included in the UNCCD files.

It should be noted that Mr. H.A. Diallo resigned his position at the secretariat effective 19 June 2007, and is currently preparing for his return to Burkina Faso later this year. A copy of the letter from the Secretary General of the United Nations, Mr. Ban Ki-Moon accepting Mr. H.A. Diallo’s resignation as of 19 June 2007 is attached. It is my understanding that [appellant] will be accompanying Mr. H.A. Diallo to Burkina Faso. Should you have any further questions please contact me.

On September 20, 2007, the State responded to appellant’s Motion to Dismiss, countering that neither appellant nor his father enjoyed diplomatic immunity in the United States. In support of this argument, the State submitted the following certification, dated September 20, 2007, which was issued by Holly S.G. Coffey, Deputy Assistant Chief of Protocol for Diplomatic Affairs at the United States Department of State: This is to certify that I, Holly S.G. Coffey, Deputy Assistant Chief of Protocol of the United State[s] Department of State, am responsible for registering and maintaining the official records of diplomatic and consular officers, and other employees of foreign governments and international organizations in the United States and its territories and, in coordination with the United States Mission to the United Nations, of members of Permanent Missions to the United Nations and officials of the United Nations. ³⁷ The official records of the Department of State, including those of the United States Mission to the United Nations, indicate that Mr. Hama A. Diallo was notified by UN Secretariat to the United Nations in New York as a Special Representative of Secretary General (United Nations Conference on Environment and Development) on August 2, 1990. He served in that capacity until his assignment was terminated on June 22, 1993. At the time of Mr. Diallo’s appointment, his son, [appellant], was notified to the Department as a member of his family forming part of his household.

Accordingly, he is not entitled to diplomatic privileges and immunities in the United States. (Emphasis added). 7 According to the State, this State Department certification was conclusive as to the Elder Diallo’s diplomatic status, requiring a denial of appellant’s Motion to Dismiss. In addition, the State referred to excerpts from a publication produced by the State Department, which explained that “[t]he only authoritative identity document [establishing the status of a person asserting immunity] is the identity card issued by the U.S. Department of State, Office of Protocol or by the U.S. Mission to the United Nations, in the case of persons accredited to the United Nations.” U.S. Department of State, Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities, (Washington, D.C., 1998 rev.) at 10. It further explained that holders of foreign diplomatic passports containing U.S. “A” or “G” visas might be entitled to privileges and immunities in the United States, although such immunity could not be conclusively established from the existence of the visa alone.

Id. The State thus asserted that the documents attached by appellant to his Motion to Dismiss “do not expound upon what kind of diplomatic status was awarded to [appellant’s] father or [ap ³⁸ pellant] and as such the letters and papers invariably fail to prove what kind of immunity was conferred upon [them] and where such immunity applies.” The State added that “even assuming, in arguendo, that the letters and papers prove diplomatic immunity for [appellant] in Germany, they do not prove diplomatic immunity in the United States.” The State concluded its argument by stating that, if the court were to determine that appellant was entitled to diplomatic immunity, the State would then request an opportunity to seek an appropriate waiver of that immunity. On November 2, 2007, appellant filed an “[Appellant’s] Reply to State’s Answer to [Appellant’s] Motion to Dismiss Indictment,” wherein appellant argued that immunity flowed to appellant as a matter of law under the relevant international conventions. Appellant also included a copy of the following October 29, 2007 attestation by Meek: This is to certify that Mr. Hama Arba Diallo, a national of Burkina Faso, is the former Executive Secretary of the Permanent Secretariat of the United Nations Convention to Combat Desertification (UNCCD), and as such was the head of the UNCCD from its inception in 1999 to 19 June 2007.

From 1993 to 1999 Mr. Diallo was in charge of the predecessor organization that founded the UNCCD. In this position the former Executive Secretary held the level of Assistant Secretary General of the United Nations, which position entitled him to diplomatic status, both in Germany and on all official missions to all member country parties of UNCCD. The United States of America, since 2001, has been a party to the UNCCD, and accordingly all of Mr. Diallo’s official travel to the United States of America since 2001 has been with full diplomatic status. Also, through responses to periodic inquiries of the Embassy of the United States of America in Berlin, Germany, the Department of State has been notified of Mr. Diallo’s position within the secretariat of the UNCCD.

With the predecessor organization from 1993 to 1999, as for all United Nations personnel, all of his official travel, including to the United States of America, he had diplomatic status with ³⁹ respect to all of the countries, which he periodically visited while seeking the ratification of the Convention. Since UNCCD’s headquarters is situated in the Federal Republic of Germany, and not in the United States of America, the United Nations and the secretariat of the UNCCD were not required to notify the Department of State of Mr. Diallo’s then current status, which was higher than previous grades that he held while based in New York until 1993. It should be noted that Mr. H.A. Diallo resigned his position at the secretariat effective 19 June 2007. Should you have any further questions, please contact me. 8 (Emphasis added).

Citing to U.S. ex rel. Casanova v. Fitzpatrick, 214 F.Supp. 425, 434 (S.D.N.Y.1963), appellant asserted that State Department certifications are ordinarily, but not always, entitled to conclusive weight in court. 9 Additionally, appellant challenged the State’s argument insofar as it was premised upon the assumption that appellant’s father resided in the United States: As such, arguably, [the Elder Diallo’s] ‘receiving State’ is not the United States at all: it is the United Nations, the true ‘receiving entity in tandern with the Federal Republic of Germany. His diplomatic immunity, conferred by the United Nations and the United Nations Convention, as well as the [UNCCD], thus followed him from country to country, where his United Nations endeavors required him to travel. However, he still enjoyed immunity from the civil ⁴⁰ and criminal jurisdiction of the United States of America— or any prosecuting state authority—which is absolute.

(Internal citations omitted). Appellant further cited to the 1976 United Nations Juridical Yearbook in support of his argument that the United Nations has “broadly” construed the immunity applicable to appellant, “interpreting the phrase ‘while exercising their functions and during their journey to and from the place of the meeting,’ to mean ‘during the entire period of presence in the State.’ ” 10 On September 25, 2007, the circuit court denied appellant’s motion to dismiss. The circuit court later granted appellant’s motion to reconsider its denial of the motion. 11 A hearing was held on November 13, 2007, during which appellant presented the following exhibits to the court: (1) various United Nations attestations, including those of Frank Meek; (2) appellant’s German diplomatic identification card; (3) a copy of the Elder ⁴¹ Diallo’s United Nations “laissez-passer,” issued on February 27, 2006 and expiring on January 15, 2008 and identifying the Elder Diallo in connection with the title “Executive Secretary”; (4) a United States G-4 visa, issued April 20, 2006 and expiring on April 18, 2007, identifying the Elder Diallo in connection with the UNCCD and including the annotation, “Bonn, Germany”; (5) a diplomatic passport from Burkina Faso, issued on February 20, 2006 and expiring on February 19, 2011, identifying the Elder Diallo as a United Nations Executive Secretary; and (6) a copy of the Elder Diallo’s German diplomatic identification card. At the November 13, 2007 hearing, both parties argued the conclusive nature of the State Department certification as to appellant’s diplomatic immunity.

Appellant further argued that his father was entitled to diplomatic immunity under art. IV, section 11 of the United Nations Convention, which confers certain privileges and immunities upon “Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations” while “exercising their functions and during their journey to and from the place of meeting....” Appellant placed particular emphasis on his assertion that his father had diplomatic immunity while on official travel to the United States, as evidenced by the United Nations attestations by Frank Meek and the U.S. G-4 visa awarded to appellant’s father. Thus, the trial court considered arguments from both counsel on this particular matter. Accordingly, the following discussion took place, without objection by appellant: [THE STATE]: Your Honor, if you look at the defense argument, they are saying as a member, his father being a member of the United Nations delegation, that they can go into any country that is a United Nations member at any time without notifying that country, commit crimes and have immunity and that—it violates the spirit.

THE COURT: I don’t think that is what counsel is saying. As I read some of the documents, they have to be there, as I understand it, for the Mission purpose. Am I wrong about that? You have to be there for the Mission ⁴² purpose.

He decides he wants to come to the United States to go to Disney world, that is a little different, as I read it. Go ahead. (Emphasis added). In addition, the following colloquy transpired between counsel and the court: THE COURT: And then you handed up a page one of twelve of what a G-4 is and it says, “issue to personnel of any rank who are proceeding to the United States to take up an appointment as a designated international organization, including the United Nations.” It says, parenthetically, “members of their immediate family may also be issued G-4 visas except.” And that is where it stops because there is no next page.

Now, what evidence do I have that for all intents and purposes [appellant’s] father was coming to the United States for a designated purpose? Where is the evidence of that, in terms of his Mission? [APPELLANT’S COUNSEL]: The attestation of Mr. Meek. THE COURT: Would that be Defendant’s [Exhibit] 7? I believe it is dated October 29th.

That is Defendant’s [Exhibit] 7, which says at the bottom, it goes on to explain—this is the one where you argue that his diplomatic status actually increased. [APPELLANT’S COUNSEL]: Right. THE COURT: It says at the bottom, “with the predecessor organization from 1993 to 1999.” Talking about your client’s father’s involvement in UNCCD. [APPELLANT’S COUNSEL]: Right. THE COURT: Okay. “As for all United Nations personnel, all of his official—of his official travel, including to the United States of America, he had diplomatic status with respect to all of the countries which he periodically visited while seeking the ratification of the Convention,” which I think dovetails into the State’s argument that it has to be for the purpose of their Mission. ⁴³ Now, what evidence do I have that on the day of this offense your client’s father, and that is how he gets his immunity, agreed? [APPELLANT’S COUNSEL]: Correct. THE COURT: Your client’s father was in the United States with regard to seeking the ratification of the Convention? [APPELLANT’S COUNSEL]: Well, actually, Your Hon- or, he would not have been in the United States to seek the ratification of the Convention in 2007 or 2006 because the Convention was ratified in 2001.

But he is here on official business with UNCCD with respect to implementing the Convention and— THE COURT: It doesn’t say that, counsel. [APPELLANT’S COUNSEL]: I’m sure that— THE COURT: With all due respect, and that is why I wanted, to recess, to read all of these documents, it doesn’t say that It says, “ratification of the Convention.” Doesn’t say continuation. Doesn’t say implementation. It says ratification.[ 12 ] What evidence do I have that your client’s father was in the United States, or wherever, that it was for that purpose, the ratification of the Convention? Because that is his Mission. [APPELLANT’S COUNSEL]: Actually, Your Honor, you have the Department of State’s G-4 Visa dated 2006, ⁴⁴ April, which would only be issued to him for official travel to the United States.

The State Department would not give him a visa if he were not here on official business. And as we write in the reply, the Convention itself, the United Nations has construed immunities very broadly, not narrowly- THE COURT: Anything else? [APPELLANT’S COUNSEL]: That is it. THE COURT: From the State? [THE STATE]: No, Your Honor. The trial court again denied appellant’s motion to dismiss, issuing the following ruling: THE COURT: All right.

Having reviewed the various pleadings in the files as well as the evidence that has been presented to me today, both from the State and the defense, the Court is persuaded that your client did not enjoy diplomatic immunity and, therefore, your motion is denied. On November 27, 2007, appellant filed a “Second Motion to Alter or Amend, or Alternatively, to Reconsider and Vacate Order Denying [Appellant’s] Motion to Dismiss.” In support of this motion, appellant attached, inter alia, (1) an October 23, 1998 letter of appointment from the United Nations appointing the Elder Diallo as Executive Secretary of the UNCCD, in the category of Assistant Secretary-General, effective January 1, 1999 and expiring on December 31, 2001; and (2) a document entitled “Senior Officials of the United Nations and Officers of Equivalent Rank Whose Duty Station is New York,” dated June 14, 2006, which identifies the Elder Diallo as the Executive Secretary of the UNCCD, stationed in Bonn. Appellant’s motion again cited to, and emphasized his previous interpretation of, art. IV, Section 11 of the United Nations Convention.

The motion was devoted primarily to challenging the trial court’s emphasis on whether the Elder Diallo traveled to the United States to promote the ratification of the UNCCD. According to appellant, since 2001, when the United States became a party to the UNCCD, Mr. Diallo continued to work towards the ratification of the UNCCD by ⁴⁵ other United Nations Member States and the implementation of the UNCCD by those states that were parties to it, requiring his travel to the United Nations Headquarters in New York. Appellant also moved to suppress his statements to the police, based, inter alia, on this same claim of diplomatic immunity. On December 14, 2007, the trial court convened a hearing on these motions.

Appellant, from the outset, requested a continuance, explaining that, the day before the hearing, appellant faxed information to the United States Mission to the United Nations (U.S. Mission) and was waiting for a response, which, according to appellant, would bolster his claim of diplomatic immunity. The trial court denied the request for a continuance on the grounds that appellant had one month between the November 13, 2007 hearing and the December 14, 2007 hearing to procure such information. Appellant further argued, without providing any basis for this argument, that the office that issued the certification was “not the correct area of the Department of State to make a comment on diplomatic immunity.” Rather, according to appellant, the U.S. Mission was tasked with that responsibility. The State disagreed.

The trial court ruled: Your client bears the burden of proving that is he [sic] a diplomat. Based upon what both sides have presented to me and I have read, if in fact he is entitled to that, if there is proof that he is entitled to that and that comes to the Court alter the fact, even after a conviction, the conviction would have to be reversed. The problem would be, not the problem, but the circumstances would be that it would involve an additional hearing. You’re presupposing you can bear your burden.

I don’t know if you can or not. I am only allowed to rule on what is presented to me to date. What has been presented to me to date is exactly what counsel for both sides have presented in argument as well as in the papers submitted to the Court. Beyond that I’m not going to speculate.

It would ⁴⁶ be inappropriate for me to speculate. So I am prepared to make a ruling. I understand your request. I’m confident that if you are right, that you can bear your burden even after the fact, then justice—there is a mechanism in our society, our particular system of justice to deal with that.

But I’m duty bound to make the calls that I’m duty bound to make based upon the information presented. It strikes me that, again, [appellant’s counsel], no disrespect, you seem to be the expert, at least amongst the group of people sitting in this courtroom, and for you to suggest that you are just now finding out that, a branch of our ominous and omnipotent government made a mistake is kind of evidence of the fact, is it not? If you are saying that one branch made a mistake, what makes you so convinced that the people you are now talking to aren’t wrong? And since you bear the burden, I don’t know, I’m not going to get in the middle of litigation, I’m not convinced that a simple letter would be sufficient.

You know, both sides in this case submitted papers and supporting documentation without objection by the other side. Had there been objection by either side in terms of their admissibility, not their persuasive effect, in terms of admissibility, we might be in a whole different ball game. And I emphasize might. I’m not suggesting there are post conviction issues here.

I’m suggesting might. There may have been other reasons why they may have been admissible. But having said all that, this Court is going to do what I swore an oath to do and that is make the decisions based on the information presented to me. It is my judgment at this point both sides have had ample time to develop whatever information to present to the Court in court, whatever information you believe is relevant and material to this issue.

Thus, the trial court denied appellant’s motion a third time, ruling as follows: ⁴⁷ All right. Thank you. Based on the information and the arguments of counsel, 1 find that the defendant’s father, I find as a fact based upon what has been presented to me that the defendant’s father ivas not a diplomat at the time of this alleged offense, and therefore his son is not entitled to the immunity that he would have been entitled to had his father been a diplomat. (Emphasis added).

Later that day, after considering appellant’s argument on his motion to suppress court further ruled: Okay. First, as to the diplomatic immunity. We had motions on this issue. I ha,ve made the ruling that I have made and I’m not going to change that. 1 reviewed, as I said, the—all of the documentation, the supporting documentation that accompanied the motions, including State’s Exhibit Number 1, which was a State Department statement from a Holly S.G. Coffey upon ivhich the Court, among other things, relied upon to make the determination that [appellant] was not a diplomat.

(Emphasis added). C Diplomatic Immunity The determination of whether a person has diplomatic immunity involves a mixed question of law and fact. United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir.2004). The United States Court of Appeals for the Fourth Circuit has examined such issues using a “ ‘hybrid standard, applying to the factual portion of each inquiry the same standard applied to questions of pure fact and examining de novo the legal conclusions derived from those facts.’ ” Id.

(quoting Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895 , 905 (4th Cir.1996)). We adopt this hybrid standard for purposes of our review in this case. In addition, we look to whether an individual possessed diplomatic immunity at the time of his or her arrest.

See Al-Hamdi, 356 F.3d at 569 ; United States v. Kuznetsov, 442 F.Supp.2d 102, 105 (S.D.N.Y.2006). ⁴⁸ As mentioned in the foregoing discussion, art. IV, section 11 of the United Nations Convention makes applicable various privileges and immunities to “Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations” while “exercising their functions and during their journey to and from the place of meeting[,]” including providing that such persons possess, under subsection (a), immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind. Subsection (g) adds that such representatives shall enjoy such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of their personal baggage) or from excise duties or sales taxes. (Emphasis added).

In all proceedings before the trial court, appellant relied on art. IV, section 11 in advancing his claim of diplomatic immunity. In this Court, however, appellant has referred to art. V, sections 17 through 21, and not to art.

IV

Section 19 provides that, in addition to the immunities and privileges specified in Section 18, 13 the “Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.” (Emphasis added). The evidence submitted by appellant indicates that the position of Executive Secretary of the UNCCD is accorded Assistant Secretary-General status. ⁴⁹ The privileges and immunities granted to diplomatic envoys are set forth by the Vienna Convention. See Restatement (Third) of Foreign Relations Law of the U.S. § 469 cmt. d (1987); 14 Brzak v. UN, 551 F.Supp.2d 313, 317 (S.D.N.Y.2008). “The Vienna Convention provides diplomats with absolute immunity from criminal prosecution and protection from most civil and administrative actions brought in the ‘receiving State,’ i.e., the state where they are stationed.” Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir.1996). Art. 29 of the Vienna Convention provides: The person of a diplomatic agent shall be inviolable.

He [or she] shall not be liable to any form of arrest or detention. The receiving State shall treat him [or her] with due respect and shall take all appropriate steps to prevent any attack on his [or her] person, freedom or dignity. Art. 31.1 provides, in pertinent part, that “[a] diplomatic agency shall enjoy immunity from the criminal jurisdiction of the receiving State.” Additionally, art. 37.1 provides: The members of the family of a diplomatic agent forming part of his [or her] household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36. The United States Diplomatic Relations Act made the provisions of the Vienna Convention applicable to the United ⁵⁰ States.

Al-Hamdi, 356 F.3d at 569 ; Tabion, 73 F.3d at 536 n. 1. That Act provides: Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 3(b) or 4 of this Act [22 USCS §§ 254b or 254c], or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure. 22 U.S.C.S. § 254d (2000) (emphasis added). See also Brzak, 551 F.Supp.2d at 317 .

As the foregoing discussion demonstrates, appellant argued that his father was entitled to diplomatic status because he would travel to the United States on official business related to his post as the Executive Secretary of the UNCCD. In support of this argument, appellant referred to art. IV, section 11 of the United Nations Convention and argued that this immunity broadly applied to a representative’s official period of stay in the country. 15 Appellant’s own submission to the trial court, in the form of attestations by Frank Meek, ⁵¹ Chief of Administration and Finance for the UNCCD, represented that, after 2001, the Elder Diallo enjoyed diplomatic status when on official travel to the United States. Appellant was arrested on October 31, 2006.

Although appellant’s father possessed a general G-4 visa to enter the United States from April 20, 2006 to April 18, 2007, appellant presented no evidence to the trial court that would establish that appellant’s father was actually on official travel to the United States at the time of his arrest. We disagree with any implied ruling by the trial court that the Elder Diallo’s travel to the United States would no longer be “official” once the United States ratified the UNCCD, for the obvious reason that, as the former Executive Secretary of the Permanent Secretariat of the UNCCD, the Elder Diallo may have been required to travel to United Nations Headquarters to carry out his general responsibilities, notwithstanding this country’s ratification of the UNCCD. Nonetheless, we hold that the trial court properly ruled that appellant had not sustained his burden of proving that he was entitled to diplomatic status on the date of his arrest. The failure to establish that the Elder Diallo enjoyed diplomatic immunity at the relevant point in time, when considered in conjunction with the State Department’s certification that appellant lacked such immunity, formed a sufficient evidentiary basis for the trial court’s legal conclusion that the motion to dismiss, on grounds of diplomatic immunity, was not meritorious.

We affirm. D State Department Certification We pause to address a point argued before the trial court, which involves the conclusive effect vel non of the State ⁵² Department’s certification in this case. The State argued that this certification was conclusive as to appellant’s diplomatic immunity and binding on the court. Appellant disagreed, but appears to concede this point in his appellate brief.

There is some ambiguity in the relevant case law as to the weight to be afforded such certifications under the circumstances presented in this case. On the one hand, in Traore v. State, 290 Md. 585, 589 , 431 A.2d 96 (1981), a case involving an employee of the French Embassy and his claim of diplomatic immunity, the Court of Appeals explained: It is settled that the State Department’s determinations concerning an individual’s diplomatic status at a particular time should ordinarily be accepted by the courts. In re Baiz, 135 U.S. 403 , 10 S.Ct. 854 , 34 L.Ed. 222 (1890); Haley v. State, 200 Md. 72, 82-84 , 88 A.2d 312 (1952). Thus, the State Department’s determination that from June 16, 1976, to December 29,1978, the defendant Traore’s status entitled him to immunity from criminal and civil liability should be respected by the judiciary.

Similarly, if the State Department had made a contrary determination, that Mr. Traore was not entitled to immunity during the same period because of his diplomatic status during that period, such determination would ordinarily be deemed conclusive. (Emphasis added). The Court of Appeals further observed that a “principal reason underlying judicial deference to the executive branch of the federal government in certain matters involving foreign governments is the principle that courts should ‘not so exercise their jurisdiction ... as to embarrass the executive arm of the Government in conducting foreign relations.’ ” Id. at 591, 431 A.2d 96 (quoting Ex parte Republic of Peru, 318 U.S. 578, 588 , 63 S.Ct. 793 , 87 L.Ed. 1014 (1943)). See also Al-Hamdi, 356 F.3d at 572-73 (explaining that federal courts continue to find the State Department’s certification conclusive on the matter of diplomatic immunity and holding that “the State Department’s certification, which is based upon a reasonable interpretation of the Vienna Convention, is conclusive evidence as to the diplomatic status of an individual”). ⁵³ Al-Hamdi, supra, is instructive.

In Al-Hamdi , the defendant, a citizen of the Republic of Yemen, contested his prosecution and conviction on firearm possession charges and argued that he possessed diplomatic immunity as a family member of a diplomat. 356 F.3d at 567 . Al-Hamdi moved to the United States in 1993 when his father was appointed as an ambassador to the embassy of the Republic of Yemen in Washington D.C. Id. at 568 . Al-Hamdi turned twenty-one in November 1998. His diplomatic identification card expired in December 1998.

Id. Although the Yemeni embassy applied for a new identification card on his behalf in December 1999, no further information was provided when the State Department requested additional information. Id. Accordingly, AlHamdi was never issued a new diplomatic identification card.

Id. Al-Hamdi was, however, issued A-l visas on numerous occasions following the expiration of his diplomatic identification card. Id. at 568 . As the United States Court of Appeals for the Fourth Circuit explains in Al-Hamdi , A-l visas are given to non-immigrants who are, among others, career diplomatic officers and ambassadors, along with members of their immediate families.

Id. at 568 n. 3 (citation omitted). After his arrest, Al-Hamdi filed a motion to dismiss his indictment on grounds of diplomatic immunity. Id. at 568 . In response to Al-Hamdi’s motion to dismiss, the State Department certified that Al-Hamdi lost his diplomatic immunity on November 12, 1998, which was the date of his twenty-first birthday.

Id. Thus, according to this certification, Al-Hamdi did not have diplomatic immunity at the time of his arrest. Id. On appeal, Al-Hamdi challenged the denial of his motion to dismiss.

Id. at 567-68 . The Government conceded that the State Department’s certification in this case was based upon its own interpretation of the Vienna Convention with respect to whether the “members of the family of a diplomatic agent forming part of his or her household,” under Article 37.1, included children over the age of twenty-one. Id. at 569-70 . Applying the “hybrid standard” discussed supra, the United States Court of Appeals for the Fourth Circuit first deter ⁵⁴ mined that the phrase “member of the family,” for purposes of immunity under the Vienna Convention, could reasonably be construed as excluding children who reached the age of twenty-one years and those still in school at the age of twenty-three.

Id. at 571. Most importantly, for purposes of our holding, the United States Court of Appeals for the Fourth Circuit ultimately concluded that, because the State Department’s certification was based on a reasonable interpretation of the Vienna Convention, it constituted “conclusive evidence as to the diplomatic status of an individual.” Id. at 573. On the other hand, the opinion rendered in U.S. ex rel. Casanova v. Fitzpatrick, 214 F.Supp. 425 (S.D.N.Y.1963), by the U.S. District Court for the Southern District of New York, is also instructive.

In that case, the District Court considered a petitioner’s writ of habeas corpus advanced on the grounds that the court lacked jurisdiction over his person. Id. at 427 . The petitioner, a Cuban national, contended that he was entitled to diplomatic immunity because he was appointed by the Cuban government as an attache and Resident Member of the Staff of the Permanent Mission of Cuba to the United Nations. Id.

This case predated the United States ratification of the United Nations Convention in April 1970. Petitioner’s diplomatic immunity argument was premised, in part, on Section 15(2) of the Headquarters Agreement of the United Nations. Id. at 428 . The prosecution filed “an authenticated affidavit of the Chief Protocol Officer of the Department of State certifying that the Government of the United States has not agreed to grant diplomatic immunity to petitioner under section 15(2) of the Headquarters Agreement, ‘and that he does not enjoy any diplomatic privileges and immunities under the aforesaid Article 15 of the Agreement.’ ” Id. at 432 .

The prosecution argued that this certification was conclusive and binding upon the court. Id. The District Court rejected the government’s argument as to the conclusive nature of the State Department certification in this case and observed: Thus, a threshold question is presented. The precise issue before the Court is whether, in the light of section 15(2) of ⁵⁵ the Headquarters Agreement, certification by the Department of State that an individual acknowledged to be a resident attache of the Permanent Cuban Mission to the United Nations has not been ‘agreed upon’ by the Government as entitled to diplomatic privileges and immunities thereunder, concludes the question.

A number of leading authorities do hold that the State Department certification is conclusive where the issue pertains to a diplomatic envoy accredited to the United States. This Court is of the view that such authorities do not control the question here presented. There is a sharp distinction between a diplomatic envoy accredited to the Government of the United States and a representative of a member state to the United Nations, an international organization. The status of each is different and immunity rests upon and is derived from entirely different desiderata.

Acceptance of a diplomatic envoy from a foreign government to the United States rests upon the exercise by our Executive of its power to conduct foreign affairs. It either accepts or rejects the diplomat in its sole and absolute discretion and, if he is received, he thereby is entitled, without more, under the Law of Nations, to full diplomatic immunity. These are political judgments by the Executive Branch of the Government and the Court is concluded thereby. In contrast, a representative of a member state to an international organization, such as the United Nations, is designated by his Government entirely independent of the views of other member states and indeed of the Organization.

The United States has no say or veto power with respect to such representative of any member state. These representatives acquire immunity only to the extent that it is granted by legislation, or by agreement, whether under the basic charter, a general convention, or a separate agreement, as in the instant case by the Headquarters agreement. Accordingly, whether or not a particular individual is entitled to immunity is to be decided within the framework of the applicable document. The Headquarters Agreement simply provides that the three designated parties are to ⁵⁶ agree upon those entitled to immunity.

It contains no provision, nor is there any supplementary agreement, which defines how such agreement is to be manifested. The determination of a claim upon a disputed state of facts that one is entitled to immunity pursuant to that agreement is not a political judgment to be made by one of the parties thereto, but a judicial determination. The political decision in the first instance was made by the Government when it agreed that upon- stipulated terms immunity was to take effect. Id. at 482-33 (internal citations omitted).

The District Court ultimately concluded that the State Department had not, under the circumstances of this case, given its agreement that the petitioner be entitled to diplomatic immunity under the aforementioned agreement, pursuant to procedures established “to implement the required tri-partite consent under section 15(2).” Id. at 439, 440 . The Court thus rejected petitioner’s other arguments and held that it had jurisdiction over the petitioner under the indictment. Id. at 442 . According to the letter issued by Holly S.G. Coffey, Deputy Assistant Chief of Protocol for Diplomatic Affairs at the State Department, appellant was not entitled to diplomatic privileges and immunities in the United States because the “official records of the Department of State, including those of the United States Mission to the United Nations,” established that appellant’s father’s was “notified by UN Secretariat to the United Nations in New York as a Special Representative of Secretary General ([UNCCD]) on August 2, 1990” and that appellant’s father “served in that capacity until his assignment was terminated on June 22, 1993.” Appellant’s arrest occurred in 2006.

We need not definitively determine whether the State Department’s certification in this case is entitled to conclusive weight. To be sure, the trial court credited the State Department’s certification. However, even assuming that the certification erroneously omitted any reference to the current ⁵⁷ United Nations position held by the Elder Diallo, and notwithstanding the certification’s broad conclusion that appellant “is not entitled to diplomatic privileges and immunities in the United States,” the trial court nonetheless thoughtfully considered appellant’s argument as to his father’s diplomatic status and concluded that appellant did not succeed in proving that his father was in the United States, in his official capacity, at the time of appellant’s arrest. As we have explained, the trial court did not err by ruling that appellant failed to sustain his burden of proof on that issue.

II Diplomatic Immunity-Motion to Suppress We next address appellant’s argument that the trial court erred by denying his motion to suppress “because his seizure, subsequent detention and statement to the police violated the Vienna Convention on Diplomatic Relations and United Nations Convention.” Because we perceive no error in the trial court’s determination that appellant lacked diplomatic immunity at all relevant times, we affirm the trial court’s denial of appellant’s motion to suppress. We explain. A Basis of Trial Court’s Suppression Ruling At the same December 14, 2007 hearing in which the trial court issued its final ruling on appellant’s motion to dismiss, the trial court proceeded to consider additional arguments relative to appellant’s motion to suppress. During this segment of the hearing, appellant testified that he informed Detective Geigel, subsequent to his arrest and on the way to the stationhouse, that he was the son of a diplomat and would like to contact his father or a member of the Burkina Faso consulate.

He further testified that, during the interrogation, Detective Geigel informed him that officers had searched his house, in an attempt to locate the gun used during the incident, and found therein a passport containing a name other ⁵⁸ than appellant’s, to which appellant responded: “[I]t was not my passport and ... my passport was from Burkina Faso and it was a diplomatic passport.” According to appellant, Detective Geigel told him that he would have to wait until the next day before he could speak with someone from the consulate. Detective Geigel’s version of events differed from that offered by appellant. He conceded that he had never previously arrested anyone proclaiming diplomatic immunity but explained that he would “know what to do” if he arrested a diplomat. Detective Geigel testified that, under such circumstances, he would notify his supervisors, contact the consulate or embassy of the country involved and notify the State Department to verify the individual’s claim of diplomatic immunity.

Detective Geigel also conceded that he took no such action with respect to appellant. According to Detective Geigel’s testimony, however, appellant never informed him of his purported diplomatic status. Additionally, Detective Geigel was asked by appellant’s counsel to read into the record the following excerpt from the State Department’s Diplomatic and Consular Immunity publication: 16 When a law enforcement officer is called to the scene of a criminal incident involving a person who claims diplomatic or consular immunity, the first step should be to verify the status of the suspect. Should the person be unable to produce satisfactory identification and the situation be one that would normally warrant arrest or detention, the officer should inform the individual that he or she will be detained until his or her identity can be confirmed.

The detective, however, was not asked to read into the record the following continuation of the above passage: In all cases, including those in which the suspect provides a State Department-—issued identity card, the law enforcement officer should verify the status with the U.S. Department of State or in the case of the United Nations communi ⁵⁹ ty, with the U.S. Mission to the United Nations. Once the status is verified, the officer should prepare his or her report, fully describing the details and circumstances of the incident in accordance with normal police procedures. If the suspect enjoys personal inviolability, he or she may not be handcuffed, except when that individual poses an immediate threat to safety, and may not be arrested or detained. Once all pertinent information is obtained, that person must be released.

Diplomatic and Consular Immunity at 16-17. After hearing the testimony of the witnesses and the argument of counsel, the trial court denied appellant’s motion to suppress. The court reiterated that appellant lacked diplomatic immunity at the time of his arrest. 17 The trial court further ruled: Now, the detective was asked on cross-examination and shown a book that was titled Diplomatic and Consular Immunity. That was presented as well to the Court as I indicated during motions, I read all of those things.

And the detective, while confessing to not having read that particular publication, did testily from the witness stand that he understands that there are certain procedures that police officers are trained in and, as a result of their training, they are to follow should someone claim that they are a diplomat or have diplomatic immunity. It is interesting to note that those procedures are, I won’t say go overboard because that would be inaccurate, but are not directly what is contained in the manual that is described as I just mentioned, “Diplomatic and Consular Immunity, Guidance for Law Enforcement and Judicial Authorities.” Having read this, I was able to harken back to my own training once upon a time and that is not factoring into the Court’s decision, it is just I remember having gone through this, just because someone says they are a diplomat, the ⁶⁰ police have a procedure that they follow. The fact of the matter is what they really are obliged to do is say prove it, and until you demonstrate to me that you are a diplomat, I don’t have to do anything. But in fact, what they do is they are more concerned about doing the right thing and do call the consular.

There is no evidence that [appellant] produced any evidence, nothing whatsoever, even if you believe him that he was a diplomat. So even if he said it, and I don’t believe he did, even if he said it, the detective would have been well within their legal right—they might have been in trouble departmentally in terms of following departmental procedure, but would have been within the legal right to saying okay, you say you are a diplomat, you have been issued an identification card that says that, show me. Failure to do that, they would treat them like any other individual. So with regard to the issue of diplomatic immunity, in regard to whether or not the statement is admissible, I find as a fact that [appellant] is not a diplomat, that at the time of the statement being taken he did not prove that he was a diplomat and merely stating it, if indeed he said it, was insufficient.

Therefore, under that context, the statement is admissible. (Emphasis added). In sum, the trial court rejected the diplomatic immunity portion of appellant’s motion to suppress on the following grounds: (1) appellant was not a diplomat entitled to the immunity he sought; (2) appellant never told the police that he was a diplomat; (3) even if he had informed the police at the time they took the statement, he should have, but failed to, produce any documentation verifying his status. B Parties’ Contentions Appellant argues that the trial court’s ruling must be reversed because it was based on what appellant characterizes as a “wrong assumption: that a police officer would be ‘well ⁶¹ within his legal right’ to arrest or detain an individual until the individual demonstrates his right to the immunity.” According to appellant, the “trial court’s position is completely out of step with the requirement of the Vienna Convention on Diplomatic Relations ... which requires receiving states to take a proactive approach to prevent arrest and detention of those persons entitled to assert the privileges and immunities of diplomatic status.” Appellant adds: As the Department of State makes clear in its direction, even where identifying documents are not readily available, the police are required to act to prevent arrest.

The base assumption is not that they are “well within their legal right” to effect an arrest: to the contrary, the assumption police must make is—that until the identity of the individual is verified—the police are not within their legal right to do anything. Appellant further asserts that the trial court, based on this “wrong-headed” assumption, erroneously discredited appellant’s testimony at trial. Appellant then states: [O]nce [appellant] informed Detective Geigel 1) that he was the son of a career United Nations diplomat and 2) that he held a stand-alone diplomatic passport issued by his native country, the Republic of Burkina Faso, the Detective was left with only one reasonable response: to release the [appellant] from custody immediately and return him to the hospital, with apologies, and/or to inform [appellant] that he may be detained from discharge from the hospital until the police verified his claim to diplomatic status with the proper United Nations and or Burkinabe Mission staff. In that scenario, there would have been 1) no handcuffs, 2) no custodial detention, 8) no interrogation and 4) no statement.

Joining appellant in this argument is Amicus Curiae, the Mission to the United States of the Republic of Burkina Faso (the Mission), which has filed an amicus brief in support of appellant’s contentions. 18 ⁶² The State counters that the trial court properly determined that appellant was not entitled to diplomatic status