In Re a Special Investigation No. 228

¹⁵¹ Moylan, J., delivered the opinion of the Court. a. A wealthy art connoisseur is charged with manslaughter. Dried blood of the victim’s blood type and the victim’s fíngerprint are found on an invaluable Ming vase in the art collector’s home. Prior to trial, the art collector objects to the police seizure of the Ming vase, not upon constitutional grounds but on the grounds that it is his property.

He is unsuccessful. Following his conviction, the art collector moves for the restoration of his Ming vase, which is still being retained in the property room. b. A pawnbroker is acquitted of having received stolen goods after it is determined that the police seizure of the goods was fíagrantly unconstitutional. Notwithstanding the acquittal, the true owners request the police to restore the stolen chattels directly to them.

The pawnbroker counterclaims that the finding of an unconstitutional seizure automatically entitles him to a restoration of the chattels that were unconstitutionally seized. c. A wealthy cocaine dealer, following his acquittal, moves for the return of $100,000 worth of high-grade "coke” seized from his yacht. Does the acquittal make a difference? Will the outcome hinge on whether the cocaine was seized constitutionally or unconstitutionally? d.

A bookmaker is acquitted when the money from his wall safe is determined to have been unconstitutionally seized. Notwithstanding the exclusion of the evidence and the subsequent acquittal, the IRS seeks the forfeiture of the funds. e. A 17-year-old hot-wires a $75,000 Rolls Royce for an evening of elitist "joyriding,” is apprehended behind the wheel, is promptly indicted, and just as promptly "jumps bail.” The police, hoping for his eventual recapture, feel compelled to hold onto the evidence. The owner, reduced to taking the bus, insists upon the repossession of his Rolls Royce pending possible recapture and trial. ¹⁵² The purpose in posing the hypothetical problems is to illustrate the frequently neglected point that personal property law is not coterminous with constitutional law — that the entitlement to have personal property (which may coincidentally be evidence) returned is not coterminous with the right to have excluded from one’s criminal trial evidence (which may coincidentally be one’s personal property).

A property right in a chattel (which may become, is now, or once was evidence) did not arise from the first promulgation of the Exclusionary Rule. A property right in a chattel (which may become, is now, or once was evidence) would not expire if the Exclusionary Rule were to be abolished tomorrow. The property right and the constitutional right have available separate avenues of vindication. The troubling problem is that those avenues are for a part of their respective courses deceivingly parallel, even share briefly a common roadbed, but then diverge dramatically.

Our statutory law and our case law have sadly failed to keep the distinction clean. This appeal arises from a blurring of that distinction. It concerns whether Md. Ann. Code Art. 27, § 551 (1982 Repl. Vol.) was intended by its framers to be a statutory scheme to settle, in part at least, possessory rights or was designed to settle constitutional questions, or is a formless muddle of both. § 551 In A Nutshell Section 551, in pertinent part, provides: "(a) [The Issuance of the Warrant] Whenever it be made to appear to any judge ... by written application signed and sworn to' by the applicant, accompanied by an affidavit... ¹⁵³ containing facts within the personal knowledge of the affiant. .. that there is probable cause, the basis of which shall be set forth in said affidavit.. . to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge, or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing, then the judge may forthwith issue a search warrant directed to any duly constituted policeman .. . authorizing him to search such suspected individual, building, apartment, premises, place or thing, and to seize any property found liable to seizure under the criminal laws of this State, provided that any such search warrant shall name or describe, with reasonable particularity, the individual, building, apartment, premises, place or thing to be searched, the grounds for such search and the name of the applicant on whose written application as aforesaid the warrant was issued, [The Execution of the Warrant] and provided further that any search or seizure under the authority of such search warrant, shall be made within 15 calendar days from the date of the issuance thereof and after the expiration of the 15-day period said warrant shall be null and void. [The Sanction for Certain Non-Compliances] If, at any time, on application to a judge ... it appears [1] that the property taken is not the same as that described in the warrant ¹⁵⁴ [2] or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, [3] or that the property was taken under a warrant issued more than 15 calendar days prior to the seizure, said judge must cause it to be restored to the person from whom it was taken...” [Restoration of Property Where the Criminal Case Is Terminated Prior to Trial or By Acquittal] "(b) If the criminal case in which property of a person was seized pursuant to a search warrant issued under subsection (a) of this section is disposed of because of (i) an entry of nolle prosequi, (ii) dismissal, or (iii) acquittal, or if the State does not appeal such a criminal case or if the time for appeal has expired, all property of the person, except contraband or any property prohibited by law from being recoverable, may be returned to the person to whom it belongs without the necessity of that person instituting an action for replevin or any other legal proceeding against the agency having custody of the property. [Restoration of Property Wrongfully Withheld When It Is No Longer Needed] (c) (1) If, at any time, on application to a judge ... it is found that property rightfully taken under a. search warrant is being wrongfully withheld after there is no further need for retention of the property, the judge must cause it to be restored to the person from whom it was taken.” ¹⁵⁵ The Present Case Beginning in August, 1981, the Baltimore City Grand Jury began an investigation of large-scale fraud in the Medical Assistance Program run by the State of Maryland.

The investigation was conducted by the Medicaid Fraud Control Unit of the Office of the Attorney General of Maryland. The particular investigation now in issue was of a here-undesignated nursing home (the Nursing Home) and a here-undesignated hospital (the Hospital) in a large suburban county somewhere in Maryland, 1 and the owners, administrators, and employees of both. During the period between August, 1981 and February, 1982, numerous witnesses were called before the Grand Jury to testify or to produce documents. As of February 4, 1982, the Attorney General developed probable cause to believe that certain documents previously subpoenaed by the Grand Jury, but not turned over to it, were being kept in a boiler room at the Hospital.

Acting pursuant to a lawfully issued search warrant, agents of the Attorney General conducted a search of the boiler room on February 4 and seized numerous books and records which had previously been subpoenaed by the Grand Jury. There is no dispute as to the propriety of that search of February 4. As productive as the search may have been, it was presumably not as productive as it might have been. When an undercover agent informed the Attorney General of the frantic and highly suspicious scurrying about that immediately preceded the search of February 4, the predicate was laid for a follow-up search on February 5.

A courtesy call from the Attorney General to counsel for the suspect Hospital had alerted the Hospital that the February 4 search team was on the way. Within the hour or so ¹⁵⁶ preceding the arrival of the searching party, six or more employees of the Hospital were observed hastily removing boxes of records from the administrative office of the Hospital, loading them onto a pickup truck, and moving them to a barn some distance away. On February 5, armed with a new search warrant, the Attorney General searched the barn and seized thirty-five boxes of books and records, these being the boxes which had been removed in great frenzy from the administrative office of the Hospital just prior to the arrival of the original searching team on the day before. The Holding in a Nutshell Before beginning the painful parsing of the almost hopelessly tangled series of orders, amendments to orders, and injunctions involved in this case, we will state in advance "the bottom line.” The package of orders required the State to return the property seized on February 5, 1982 to counsel for various suspects and forbade the State, even prior to the physical return, to examine and to inspect the property and to use the information thereby gained even in a derivative way.

The State has appealed this denial of the right to use, directly or indirectly, the evidence seized on February 5. Because of multitudinous substantive and' procedural errors all working to the detriment of the State, we will vacate the orders in this case. As we begin the effort to be more particular in our analysis, the biggest impediment is the confusing intermingling of Art. 27, § 551 and the Fourth Amendment’s Exclusionary Rule. 2 The doctrinal eggs have been so thoroughly scrambled, that it calls for a Herculean effort even to try to unscramble them. Before reciting the history of the motions and orders in this case, it is necessary to try to make clear the frequently blurred distinction between § 551 and the Exclusionary Rule. ¹⁵⁷ The Exclusionary Rule, as Distinguished from Art. 27, § 551 The Exclusionary Rule deals exclusively with matters of constitutional dimension; § 551 deals in part with infractions that are of less than constitutional stature.

The Exclusionary Rule concerns only improper searches and seizures; two of the three situations in which § 551 requires the return of seized property concern proper searches and seizures. The Exclusionary Rule deals with warrantless searches as well as with those conducted under authority of a warrant; § 551 deals only with searches executed under a warrant. It does not have the remotest bearing upon warrantless searches, be they legal or illegal, constitutional or unconstitutional. (Indeed, the very section in question is codified under the subtitle of "Search Warrants”).

The Exclusionary Rule is not remedial in intent but serves a prophylactic purpose of general deterrence, aimed at curbing future police misconduct, Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976); § 551 is exclusively remedial in purpose and is concerned with restoring a right of possession to one wrongfully deprived of that right. The Exclusionary Rule covers such intangibles as things seen and conversations overheard. Alderman v. United States, 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969); § 551 covers only goods and chattels. The Exclusionary Rule regulates only the admissibility of evidence at a criminal trial, Warden v. Hayden, 387 U.S. 294, 305 , 87 S.Ct. 1642 , 18 L.Ed.2d 782, 791 (1967); § 551 regulates possessory rights before trial, after trial, or where no trial ever takes place. ¹⁵⁸ The Exclusionary Rule forbids derivative use-under the "fruit of the poisonous tree” doctrine, Wong Sun v. United States, 371 U.S. 471, 83 .

S.Ct. 407, 9 L.Ed.2d 441 (1963); § 551 -mandates only the return of possession and has nó concern with derivative use. The Exclusionary Rule bans unconstitutionally seized contraband as well as any other variety of evidence, Warden v. Hayden, 387 U.S. at 307-308 , 18 L.Ed.2d at 792 ; § 551 does not compel the return of contraband, no matter how unconstitutional or otherwise illegal its seizure may have been. Board of Police Commissioners v. Wagner, 93 Md. 182 , 48 A. 455 (1901); Wagner v. Upshur, 95 Md. 519 , 52 A. 509 (1902), One has standing to invoke the Exclusionary Rule only as a defendant in a criminal case. United States v. Salvucci, 448 U.S. 83, 86-88, 100 S.Ct. 2547 , 65 L.Ed.2d 619, 624-625 (1980).

Thus, one whose personal property is unconstitutionally seized has no standing where the seized property is used against someone else. United States v. Payner, 441 U.S. 727, 100 S.Ct. 2439 , 65 L.Ed.2d 468 (1980). By way of contrast, one is entitled to invoke the remedy of § 551 even if one is not the defendant and even if the chattel seized from him is to be used against, or has been used against, someone else. Novak v. State, 195 Md. 56 , 72 A.2d 723 (1950).

One is not, however, entitled to invoke § 551, even as a., defendant, if the evidence in question was unconstitutionally seized from the possession of another. One need not have a right to possess the chattel to have standing to invoke the Exclusionary Rule; it is enough to have been legitimately present on someone else’s premises, Cecil Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960); it is enough to have a possessory interest in the place searched even without a possessory interest in the thing seized. By way of contrast, one’s entitlement to invoke- § 551 depends upon the rightful possession of the personal property in question. Even if one has standing to invoke the Exclusionary Rule, such standing will only entitle him to have unconstitutionally seized evidence excluded from the State’s ¹⁵⁹ case in chief on the merits of guilt or innocence; one is not entitled to have the evidence excluded from a civil trial, United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976); one is not entitled to have the evidence excluded from a grand jury, United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974); one is not entitled to have the evidence excluded when it is offered in rebuttal for purposes of impeaching the defendant’s testimonial credibility, United States v. Havens, 446 U.S. 620 , 100 S.Ct. 1912 , 64 L.Ed.2d 559 (1980), and Walder v. United States, 347 U.S. 62 , 74 S.Ct. 354 , 98 L.Ed. 503 (1954).

By way of contrast, the rightful possessor of personal property may sometimes be entitled to its return under § 551, regardless of the forum in which it is to be used and regardless of whether the use contemplated is on the merits of guilt or innocence or is only to impeach testimonial credibility. The contours of the Exclusionary Rule bear little resemblance to those of § 551 beyond the obvious fact that they both deal with the subject of search warrants. Art. 27, § 551, as Distinguished from the Exclusionary Rule What is now Art. 27, § 551 was first enacted by the General Assembly in 1939. 3 The limited utility of the section was apparent in two regards. The very titling of the bill referred to an act "relating to the issuance of search warrants.” It did not touch in the obliquest fashion the vast majority of searches and seizures, which were and are conducted warrantlessly.

The second aspect of the limited utility tied in with the first. In 1939, search warrants were not routinely resorted to for the investigation of crimes of violence or for more serious crimes generally. The reason for this was obvious; Maryland had no exclusionary rule for felonies and for many of the ¹⁶⁰ more serious misdemeanors. The partial exclusionary rule which the General Assembly had enacted in 1929 (the so-called Bouse Act) 4 applied only to the less serious, nonexempted misdemeanors — classically, cases of bootlegging and gambling.

With the Repeal of Prohibition in 1933, gambling violations alone remained as the hard core of the crimes covered by the Bouse Act. These were the cases wherein the police regularly obtained search warrants. Indeed, the early placement in the Code of the new law was, until 1958, under the subtitle "Gaming.” It is clear that the new law did not seek to vindicate a protection against unreasonable searches and seizures generally, for the overwhelming majority of searches (the warrantless ones) was not covered by the law. Even with respect to that small residuum of searches authorized by warrants and, therefore, covered by law, the new law did not create an exclusionary rule.

The gambling cases already had the benefit of the Bouse Act and did not need a new law for such a purpose. Beyond the Bouse Act, the common law recognized no exclusionary rule for otherwise competent evidence. 5 In 1973, Maryland repealed even the limited Bouse Act. The central purpose of the new law was to set out the requirements for obtaining a search warrant. It provided that only a judge could issue such warrant.

It required that the application for the warrant not only be under oath (thereby paralleling the Fourth Amendment) but also that it be in writing and that it be signed (something not required by either the Fourth Amendment or Article 26 of the Maryland Declaration of Rights). It further required that ¹⁶¹ the warrant be based upon probable cause (again paralleling the Fourth Amendment). It, however, limited its coverage to search warrants, whereas both the Fourth Amendment and Article 26 cover arrest warrants as well. The new law concluded with the requirement that there be reasonable particularity of description of the place to be searched (again paralleling the Fourth Amendment) but strangely did not expressly require (as does the Fourth Amendment) particularity of description with respect to the things to be searched for and seized.

The next sentence did, however, provide that property be returned if it "is not the same as that described in the warrant.” After setting forth the requirements for the issuance of a valid warrant, the new law went on to provide two circumstances under which the property that had been taken should "be restored to the person from whom it was taken”: (1) if "it appears that the property taken is not the same as that described in the warrant,” or (2) if "there is no probable cause for believing the existence of the grounds on which the warrant was issued.” The second of these sets of circumstances led to the practice that was for the next few decades referred to as "Quashing the Warrant.” If there was a structural defect in the warrant itself, because it was not issued by a judge, was not appropriately signed and in writing and sworn to, was not based upon probable cause, or did not particularly describe the place to be searched, then the warrant was "quashed” and the search executed under authority of it was deemed not lawful. In cases of gambling and other minor misdemeanors, such a quashing of the warrant operated coincidentally to exclude all evidence, under the then current provisions of the Bouse Act. In cases of felony and nonexempt misdemeanors, on the other hand, the quashing of the warrant did not operate to exclude the evidence, if the State had had the prescience to make copies or photographs of it or had sufficient recollection to testify about it from memory. With the quashing of the warrant, however, the physical evidence itself was returned to the person from whom it had been unlawfully taken. ¹⁶² The- first set of circumstances, by contrast, involved no defect in the issuance of the warrant at all but only a defect in its execution.

If in conducting an otherwise lawful search pursuant to a good warrant, the police seized not only the evidence that had been reasonably described but other evidence which had not been reasonably described, they were required to return the latter to the person from whom it had been seized. This section of the law was frequently resorted to following police raids on lottery headquarters and bookmaking parlors. In such raids, even under good warrants, there was frequently seized not only gambling paraphernalia itself but also sizeable amounts of cash. It was not uncommon for defense attorneys routinely, following the convictions of their clients and the impositions of minor fines and suspended sentences, to petition the court some days or weeks after trial for the return of the cash, on the grounds that it had not been described as the object of the search. 6 In a nutshell, the new law did not purport to represent a broad coverage of the field of search and seizure.

It did not, moreover, directly treat the exclusion of evidence; it simply provided a partial predicate for whatever exclusionary rules were otherwise available. The first significant change in the law was made eleven years after its enactment. Chapter 81 of the Acts of 1950 added a third requirement for the valid execution of a warrant. It provided that even a valid warrant must be executed within fifteen calendar days of its issuance and that after the expiration of the fifteen days, the warrant should be null and void.

It further provided that the failure to comply with this provision would cause the seized property "to be restored to the person from whom it was taken,” just as in the case of the other forms of noncompliance. ¹⁶³ This requirement in the seach warrant law was of sub-constitutional status, since neither Article 26 of the Maryland Declaration of Rights nor the Fourth Amendment included such a requirement. The Fourth Amendment Exclusionary Rule, even after it was held binding on the states in 1961, 7 would not apply to a violation of this provision, since the Exclusionary Rule of Mapp, of jurisdictional necessity, can apply only to a violation of federal law and not of state law and only to a violation of the United States Constitution and not of a mere statute. 8 Clearly, the new provision created a possible instance of statutory noncompliance where the return of property was called for but where the exclusion of evidence was not. The amendment of the law in 1958 9 was significant not so much for the minor stylistic changes which it made but for other proposed changes which it did not make. The original version of House Bill 37 proposed for the first time a broad exclusionary rule for Maryland, not limited in its coverage as was the Bouse Act and anticipating Mapp v. Ohio by a full three years.

The proposed amendment provided that a search in violation of § 551 10 or an unconstitutional search generally would result in the suppression of the evidence produced. The proposed exclusionary rule would have dealt with "unlawful” searches as well as with unconstitutional searches. It would, moreover, have dealt with warrantless searches and seizures as well as with defects in the issuance or execution of warrants. Significantly, for the reading of legislative intent, all of these proposed changes were struck from the bill prior to its enactment. ¹⁶⁴ The divergence between the Exclusionary Rule and § 551 became even more pronounced with the amendments to the Maryland law made in 1975 and 1976.

Prior to 1975, § 551 had directed that property "be restored to the person from whom it was taken” only in cases where that taking had been somehow improper, at least illegal if not actually unconstitutional. Chapter 704 of the Acts of 1975 added an additional set of circumstances when property should be returned, one where the initial search and seizure had been perfectly proper but where the criminal case had since been nol-prossed or dismissed or had resulted in an acquittal. Under such circumstances, all property "except contraband or any property prohibited by law from being recoverable, may be returned to the person to whom it belongs without the necessity of that person instituting an action for replevin or any other legal proceeding against the agency having custody of the property.” This set of circumstances does not remotely involve the Exclusionary Rule or any other rule of evidence. It is substantive law, not procedural law.

It only comes into play after the trial is over or the prosecution otherwise terminated. A prophylactic rule, moreover, aimed (as is the Exclusionary Rule) at deterring future police misbehavior, would have no utility in circumstances such as these where there has been no police misbehavior. This aspect of § 551, furthermore, directs that the property be returned not "to the person from whom it was taken” but rather "to the person to whom it belongs.” Here is a significant difference. Here, the rightful owner of stolen property could invoke the benefit of § 551, even following the possible acquittal of the thief.

The earlier provisions of § 551, on the other hand, seemed to direct the return of unlawfully seized property to the thief himself (assuming he was the person from whom the stolen goods had been unlawfully seized). The 1976 amendment 11 added yet a third set of circumstances under which property should be returned. ¹⁶⁵ This newly created subsection (c) also dealt with circumstances where initially the property had been "rightfully taken under a search warrant” but where it subsequently "is being wrongfully withheld after there is no further need for retention of the property.” Strangely and perhaps inadvertently, this third subsection of the law directs the judge to cause the property "to be restored to the person from whom it was taken,” and not, as in subsection (b), 12 "to the person to whom it belongs.” Applied literally, this subsection would seem to confer a right upon a convicted thief which would not be available to the rightful owner of the stolen goods. Art 27, § 551 As It Stands Today Appropriately, § 551 is now codified under the subtitle "Search Warrants.” In its present configuration, it, like Gaul, is divided into three parts: 1. Subsection (a) performs three essential functions.

First and foremost, it legitimates the very investigative technique of the search and seizure warrant. Its basic thrust was not to place curbs on what had theretofore been legal searches but rather to legalize what had theretofore been illegal searches. It was the prevailing legal thought in 1939 that explicit statutory authorization was a necessary precondition for any search warrant other than one to search for stolen goods. 13 In order to ¹⁶⁶ avoid the exclusion of evidence under the Bouse Act, it was necessary to legalize searches for other forms of evidence as well. 14 The second function of Subsection (a) is to set out a number of requirements (several constitutional and others merely statutory) for the valid issuance of a search warrant and at least one requirement for the valid execution of a search warrant. The third and final function of Subsection (a) is to provide the sanction of ordering that the seized property "be restored to the person from whom it was taken” for certain instances, but strangely not all instances, of noncompliance with those requirements. 2.

Subsection (b) deals with the situation where "the criminal case ... is disposed of because of (i) the entry of nolle prosequi, (ii) dismissal, or (iii) acquittal.” In such cases, "all property ... except contraband or any property prohibited by law from being recoverable, may be ¹⁶⁷ returned to the person to whom it belongs” without the necessity for "an action of replevin.” 3. Subsection (c) provides that "property rightfully taken under a search warrant” must "be restored to the person from whom it was taken” if it is found that the property "is being wrongfully withheld after there is no further need for retention of the property.” 15 Subsections (b) and (c) deal exclusively with possessory rights separate and apart from any question of unconstitutional or otherwise unlawful searches. They are easy to understand and to apply. Subsection (a), on the other hand, is a troubling and a troubled provision in two quite distinct regards.

Its sanction is woefully incomplete when measured against its requirements. Three times it spells out with exactitude the three situations that will trigger its sanction of causing the property to "be restored to the person from whom it was taken.” One of those situations deals with a single flaw in the issuance of a warrant; the other two situations deal with flaws in the execution of the warrant. The triggers are explicit: "If ... it appears [1] that the property taken is not the same as that described in the warrant or [2] that there is no probable cause for believing the existence of the grounds on which the warrant was issued or [3] that the property was taken under a warrant issued more than 15 calendar days prior to the seizure.” ¹⁶⁸ Only one of the triggers for the sanction ■— the absence of probable cause — goes to the validity of the warrant’s issuance. Yet Subsection (a) has established no less than nine requirements for the valid issuance of a warrant: (1) that it be issued by a judge; (2) that the application be in writing; (3) that it be signed by the applicant; (4) that it be sworn to by the applicant; (5) , that it be "accompanied by an affidavit ... containing facts within the personal knowledge . of the affiant” ; (6) that there is probable cause to believe that a crime is being committed or that property subject to seizure is located on a person or in a place; 16 (7) that the individual or place to be searched be "within the territorial jurisdiction of such judge”; (8) that the warrant be issued to a "duly constituted policeman”; and (9) that the warrant "name or describe, with reasonable particularity, the individual, building, apartment, premises, place or thing to be searched.” 17 ¹⁶⁹ A failure to comply with any of the nine requirements would render the warrant unlawful and would have justified the limited exclusionary rule once available under the Bouse Act.

Only the failure to comply with requirements 1, 4, 6, or 9 (or, arguably, 7) would be indisputably in violation of the Fourth Amendment so as to justify the Exclusionary Rule of Mapp v. Ohio. By way of strange contrast, but by its express terms, the sanction of § 551 is only available for a failure to comply with requirement 6. Subsection (a) also poses one explicit requirement for the valid execution of a warrant — that it be executed within 15 calendar days of its issuance. 18 The availability of the sanction for that noncompliance is clear-cut. The third trigger also involves a flaw in execution, not a flaw in issuance — where "the property taken is not the same as that described in the warrant.” Involved here is not the familiar constitutional requirement that the warrant not be overbroad in its catalogue of things to be searched for.

Involved, rather, is a requirement that the things actually seized in the course of executing the warrant be things "described in the warrant,” be that description broad or narrow. The prohibition is against gratuitous seizures totally beyond the scope of the warrant. The fault contemplated is that the actual seizure is outside the authority of the warrant, not that the warrant is flawed by inadequate particularization. A deeper problem with Subsection (a) is that much of its philosophical underpinning, its very language, its flavor and tone are now strangely anachronistic.

It is a product of an earlier time when search and seizure analysis was far less sophisticated than it has become in the last twenty years. Some of its notions about quashing warrants and returning property simply cannot be reconciled with modern constitutional thought. ¹⁷⁰ Until the promulgation of Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967), the right of the State to seek and to use evidence was strictly contingent on its ability to establish a superior property right in the evidence. Under the long prevailing "mere evidence rule,” 19 the State was entitled to search for, to seize, and to use (1) the fruits of crime (stolen goods), (2) instrumentalities of crime, and (3) contraband, because the State was able to establish a property right in such evidence superior to that of the defendant. The State could not seize and .use, on the other hand, "mere evidence” of crime, even under a constitutionally unassailable search warrant, because there was no known theory under which it could assert a superior property right. 20 This was why the common law of England and of Maryland recognized the search warrant for stolen goods, but no.other search warrant. 21 The police were deemed to be ¹⁷¹ the repossession agents of the true owners.

Since the property right of the owner was superior to that of the thief, so was that of the agent of the owner. 22 Gradually, other theories were developed to carve out other entitlements to evidence on the part of the State. 23 With respect to contraband, the law recognized no right of private ownership, and the defendant was thus bereft of any theory under which to seek repossession of even unlawfully seized contraband. With respect to instrumentalities of crime, the ancient law of deodand ("it should be given to God”) was resuscitated to explain such forfeiture (first to God; after 1536, to the King; after 1776, to the State). 23A Beyond "fruits, ¹⁷² instrumentalities, and contraband,” everything else was "mere evidence” and was beyond the pale of seizure or use by the State. The language of the Maryland statute reflects these earlier distinctions. The warrant authorized by § 551 is not addressed to evidence generally but to "property subject to seizure.” Subsection (b) carefully exempts from its restoration provision "contraband or any property prohibited by law from being recoverable.” The whole theory of the entitlement of the State to seize, to retain, and to use personal property that has utility as evidence of crime changed dramatically with Warden v. Hayden .

The Supreme Court squarely abolished the "mere evidence rule” and recognized that whatever historical validity the old property theories might once have had, they were totally obsolete. "The premise that property interests control the right of the Government to search and seize has been discredited.” Warden v. Hayden, 387 U.S. at 304 , 18 L.Ed.2d at 790 . "Nothing in the language of the Fourth Amendment supports the distinction between 'mere evidence’ and instrumentalities, fruits of crime, or contraband.” Id. at 301 , 18 L.Ed.2d at 789 . "We today reject the distinction as based on premises no longer accepted as rules governing the application of the Fourth Amendment.” Id. at 300-301 , 18 L.Ed.2d at 788 .

In the course of enunciating this doctrinally new rationale for the State’s entitlement to seize and to use evidence, the Supreme Court recognized that the right to have evidence suppressed did not necessarily entail the right to have property returned and, conversely, that the right to have property returned did not necessarily entail the right to have evidence suppressed. It pointed out that "suppression might be sought during a criminal trial, and under circumstances ¹⁷³ which would not sustain an action in trespass or replevin.” Id. at 305 , 18 L.Ed.2d at 791 . In tracing the right to have derivative evidence suppressed established by Silverthorne Lumber Company v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920), it pointed out that suppression was there appropriate, "although no possible common law claim existed for the return of the copies made by the Government of the papers it had seized. The remedy of suppression, necessarily involving only the limited, functional consequence of excluding the evidence from trial, satisfied that demand.” 387 U.S. at 305 , 18 L.Ed.2d at 791 . 24 For present purposes, the key distinction made by the Supreme Court was that the remedy of having property returned and the remedy of having evidence suppressed do not necessarily go hand in hand: "For just as the suppression of evidence does not in itself necessarily entitle the aggrieved person to its return (as, for example, contraband), the introduction of 'mere evidence’ does not in itself entitle the State to its retention.

Where public officials 'unlawfully seize or hold a citizen’s realty or chattels, recoverable by appropriate action at law or in equity. . .,’ the true owner may 'bring his possessory action to reclaim that which is wrongfully withheld.’ ” (Emphasis in original.) Id. at 307-308 , 18 L.Ed.2d at 792 . What emerges is the governmental policy that, subject only to the constitutional limitations imposed through the Exclusionary Rule, the State derives its entitlement to seize, to hold, and,to use personal property from the very utility of that property as evidence of crime. Utility as evidence is all the justification the State needs to assert control over the property. Stolen goods are seized primarily to prove larceny, not to recover the chattels for the victim.

Contraband is ¹⁷⁴ seized primarily to prove unlawful possession, not to destroy it. The instrumentality of death is seized primarily to prove the murder, not to forfeit it to God, King, or State. With the new analysis, all evidence, including what had once been "mere evidence,” is controllable by the State simply by virtue of its evidentiary utility. Warden v. Hayden concluded unequivocally: "The premise in Gouled that Government may not seize evidence simply for the purpose of proving crime has likewise been discredited.

The requirement that the Government assert in addition some property interest in material it seizes has long been a fiction, obscuring the reality that • government has an interest in solving crime.” Id. at 306 , 18 L.Ed.2d at 791-792 . The remedy provision of Subsection (a) of § 551 is "out of step with this modern constitutional thought on the right of the. State to seize and to use evidence of crime. The "interest in solving the crime” establishes the public’s entitlement to evidence of crime.

Yet, Subsection (a) mandates the return of property. seized under a warrant executed more than fifteen days,after its issuance, despite the fact that the evidence would have utility in the State’s case in chief on the merits of guilt or innocence. (The Exclusionary Rule would not bar it, for the violation was not of constitutional dimension). Even where the flaw in the issuance of a warrant (such as the lack of probable cause) would trigger the Exclusionary Rule as well as the remedy of Subsection (a), the Exclusionary Rule would go only to the use of such evidence in the State’s case in chief. That evidence .would still have social utility for submission to a grand jury, United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974); that evidence would still have social utility on rebuttal for purposes of impeaching the defendant’s testimonial credibility, United States v. Havens, 446 U.S. 620 , 100 S.Ct. 1912 , 64 L.Ed.2d 559 (1980); that evidence would still have social utility in the trial of a codefendant who had no standing to object, Rakas v. Illinois, ¹⁷⁵ 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978).

In significant ways, the Maryland statute and the Exclusionary Rule are at cross-purposes. Granting the right of a sovereign state, perhaps inadvertently, so to limit its ability to enforce its criminal laws, it is blatantly apparent that the mere availability of the remedy under § 551 (a) does not, ipso facto, demonstrate, the right to have evidence suppressed under the Exclusionary Rule, or vice versa. An overly literal reading of Subsection (a)’s command that only items described in the warrant may be seized, moreover, collides with the theory of Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), that even if a warrant prove bad, the State may still fall back upon alternative warrantless theories to justify the use of the seized evidence even in its case in chief. An overly literal reading of Subsection (a) in this regard would also do violence to the Plain View Doctrine enunciated by Coolidge v. New Hampshire, at 403 U.S. 464 -473, 29 L.Ed.2d 581 -587. 25 It is settled constitutional law that if there is a prior valid intrusion to execute a warrant for A, B, and C (described in the warrant), and the police inadvertently spot in plain view D, E, and F (not described in the warrant) with probable cause to believe that D, E, and F are evidence of crime, they may seize D, E, and F and use them even in the case in chief.

Stanley v. Georgia, 394 U.S. 557, 571 , 89 S.Ct. 1243 , 22 L.Ed.2d 542, 553 (1969), (Stewart, J., concurring in result); Marron v. United States, 275 U.S. 192 , 48 S.Ct. 74 , 72 L.Ed. 231 (1927); Hughes v. State, 14 Md. App. 497, 510-511 , 287 A.2d 299 (1972). The answer to a literal invocation of Subsection (a) would have to be that one may not seize under the warrant things not described in the warrant, but may well seize them under some other Fourth Amendment theory. Under such circumstances, things seized in the course of executing a warrant, even though not described in the warrant, do not have to be returned. ¹⁷⁶ In summation, a close reading of § 551 side by side with the Fourth Amendment yields dozens of major and minor distinctions that are heedlessly plastered over by the slapdash assumption that the Maryland statute is neither more nor less than a legislative embodiment of Mapp v. Ohio. 26 What emerges from the analysis is that the federal Exclusionary Rule and the Maryland statute, though overlapping minimally as they touch probable cause and possibly particularity of description, are totally divergent remedies, with vastly diverse histories, serving completely ¹⁷⁷ different purposes, utilizable at significantly different stages of legal proceedings, available to different classes of litigants with different problems, and emanating from separate sovereigns. Notwithstanding distinctions that are as prominent as they are numerous, the two provisions of law were tossed back and forth in the proceedings we now analyze with uncritical interchangeability.

Their procedures, provisions, and purposes were casually intermingled as if they were no more than mirror images of one another. 27 The Proceedings in this Case Mrs. H’s Motion of March 3 The search and seizure in issue in this case occurred on February 5,1982. The locus of the search was an outbuilding located on a rural property owned by Mrs. H and her husband. On March 3, Mrs. H filed a motion in the Criminal Court of Baltimore requesting the "Return of Seized Property.” It is virtually impossible to determine the strictly legal, as opposed to the rhetorical, basis for the motion. The eight-line motion itself represents that it is filed "pursuant to the Maryland Rules of Procedure, Rule 736.” The 700 Rules regulate procedure in "Criminal Causes.” Although many of the established procedures deal with matters "pretrial,” they do not deal with matters "pre-criminal cause.” There were no charges pending against anyone in this case.

There was nothing within the ¹⁷⁸ jurisdiction of the criminal court. There was no criminal charge to which the 700 Rules would even attach. In holding that the 700 Rules were an inappropriate vehicle to deal with extrinsic, albeit arguably related, matters, Avery v. State, 15 Md.App. 520, 537 , 292 A.2d 728 (1972), cert. den., 410 U.S. 977 , 93 S.Ct. 1499 , 36 L.Ed.2d 173 (1973), was very explicit: "Md. Rule 701 deals with the interpretation of the Rules set forth in Chapter 700 concerning criminal causes. The suggested dismissal of the indictment is not predicated upon any Rule in Chapter 700 and therefore Rule 701 is not applicable.” A motion to return property is not predicated upon any rule in Chapter 700.

When one looks specifically at Md. Rule 736, stating which motions shall be determined prior to trial, the type of motion contemplated is easily discernible. Subsection a, dealing with which motions must be filed before trial, catalogues five such motions, and each of them clearly contemplates a pending criminal case: "1. A defect in the institution of the prosecution; 2. A defect in the charging document, other than its failure to show jurisdiction in the coúrt or to charge an offense which defenses can be noticed by the court at any time; 3.

An unlawful search, seizure, interception of wire or oral communication, or pretrial identification; 4. An unlawfully obtained admission, statement or • confession; 5. A motion for joint or separate trial of defendants or offenses.” The miscellaneous catch-all represented by Subsection c, "Other Motions,” clearly contemplates other motions in a pending criminal case of the same type as those spelled out in Subsection a. Subsection c reads: ¹⁷⁹ "Any other defense, objection or request capable of determination before trial without trial of the general issue shall be raised by motion filed at any time before trial.” 28 Indeed, the very structure of the 700 Rules, dealing first with Charging Documents, then with Initial Processing, with Pleas and Motions, with Matters Preliminary to Trial, with Trial and with Post-Trial Procedure, contemplates some pending criminal case.

More specifically, Md. Rule 736 which deals with "Motions Before Trial” contemplates a pending criminal case. Even more specifically, Subsection b, aimed at the five specified mandatory motions (but not without significance for the miscellaneous "Other Motions”) provides that they "shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court.” The entire context, including reference to the potential moving party as "the defendant,” 29 leaves no doubt that everything in the 700 Rules generally, and in Md. Rule 736 specifically, contemplates some action then pending before the criminal court. Before deciding what kind of a motion was actually before the court in this case — a motion for the return of property or a motion for the suppression of evidence — and before reaching the merits of such motion, we note preliminarily that the motion was filed at the wrong time in the wrong court. As filed "pursuant to the Maryland Rules of Procedure, Rule 736,” it (whatever it was trying to do) was premature, because no criminal case was pending so as to engage the gears of the 700 Rules. ¹⁸⁰ The motion was, moreover, erroneously filed in the Criminal Court of Baltimore.

The criminal court is without jurisdiction to entertain motions prior to the pendency of criminal charges. Even former Md. Rule 729b2 (effective through July 1, 1977), which provided for the return of property which the new 700 Rules (in effect since July 1, 1977) do not, explicitly directed that any motion for the "return of property on the ground it was obtained by an •unlawful search or seizure,” which is filed before indictment or before a defendant has been held for the action of the grand jury, "shall be Gled in a law court of the county where the property was seized or is being held or where the offense was allegedly committed.” (Emphasis supplied). 30 Former Md. Rule 729b2 went on to provide that the State’s Attorney of the county in which the proceeding is brought should be named as a party defendant in that civil suit. Former Md. Rule 729b3 went on to provide that jurisdiction should be transferred to the criminal court only in the event that criminal proceedings were commenced after the filing of the petition but before a hearing thereon. Indeed, the lower federal cases relied upon by the appellees, inapposite generally because they are based upon a legal theory not recognized under Maryland law, 31 also recognize the lack of jurisdiction in the criminal court to entertain a motion for the return of property where no criminal charges are pending.

They recognize that under such circumstances, the relief sought is equitable and the ¹⁸¹ petition for the return of property is decided on equitable principles. "[B]efore an indictment is returned (that is, when the criminal prosecution is in posse but not in esse) the party aggrieved has an 'independent’ action .. . Such an action is a civil matter and should be so docketed.” Lord v. Kelley, 223 F.Supp. 684 (D. Mass. 1963). See also Pieper v. United States, 604 F.2d 1131 (8th Cir. 1979); In Re Nwamu, 421 F. Supp. 1361 (S.D. N.Y. 1976); Hunsucker v. Phinney, 497 F.2d 29 (5th Cir. 1974); Richey v. State, 515 F.2d 1239 (5th Cir. 1975).

Lest we be accused of hypertechnicality — the exalting of form over substance — we hasten to point out that the insubstantiality of Md. Rule 736 as a predicate for the motion and the lack of jurisdiction in the criminal court to entertain the motion were the least of the defects in the proceedings below. Assuming, therefore, that the motion was properly brought and was brought in the right court, we go on to matters of more substance. a. Considered as a Motion to Suppress Evidence Although we think it unlikely, it is arguable that the motion before the court was a motion for the suppression of evidence. Several factors tilt decidedly toward such an interpretation.

It was brought (even if untimely so) under the 700 Rules, which provide (explicitly under Md. Rule 736) for the suppression of evidence but which do not now provide for the return of property. 32 It was brought, moreover, in the ¹⁸² criminal court. It was brought by a woman who may have owned the outbuilding in which the records were kept but who was not the owner of the seized records and would, therefore, not seem to be an interested party to a dispute over the rightful possession of the chattels. Most significantly, however, almost all of the argument in the six pages of memorandum supporting the motion "sounds” in constitutional law and not in the explicit provisions of § 551. Almost all of the cases cited in the memorandum deal with Fourth Amendment protections and concerns.

The vindication of the constitutional protections is the primary function of the Exclusionary Rule. Section 551, on the other hand, though concerned, to be sure, with the showing of ¹⁸³ probable cause, is also concerned with statutory requirements that are not constitutional and with rights of possession which are not contingent upon a finding of unconstitutionality in the first instance. Whatever the motion may have been, the argument in support of it is so predominantly constitutional in tone as to give rise to the real possibility that it was a motion to suppress evidence. Considered as such, the motion was demonstrably without merit.

It might well have developed that the Hospital or the Nursing Home, as corporate entities, or various doctors or administrators connected with those institutions would have been the ultimate indictees and not Mrs. H herself. Under the circumstances, she would clearly have no standing to move for the suppression of evidence. Even if Mrs. H had ultimately become a criminal defendant, it is by no means clear that she, as the owner of an outbuilding which had been leased to the Hospital, had a Fourth Amendment interest in "the place searched” and, therefore, standing to object. Even if Mrs. H had had standing of every possible variety, moreover, the recipient forum for the seized evidence in this case was a grand jury and not a criminal court on the merits of guilt or innocence.

Even to vindicate the loftiest of constitutional ideals, we do not suppress evidence at the grand jury level. United States v. Calandra, 414 U.S. 338, 351-352 , 94 S.Ct. 613 , 38 L.Ed.2d 561, 573 (1974), was unequivocal in this regard: "Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.... We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in ¹⁸⁴ the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury.” Even if we had moved beyond the grand jury stage to the trial stage, even if Mrs. H had been indicted, and even if Mrs. H otherwise had standing, the State, even following a showing of clear unconstitutionality, would not have been barred from the possible use of the seized evidence on rebuttal for impeachment purposes.

In this regard, United States v. Havens, 446 U.S. 620, 627-628 , 100 S.Ct. 1912 , 64 L.Ed.2d 559, 566 (1980), was equally unequivocal: "We also think that the policies of the exclusionary rule no more bar impeachment here than they did in Walder, Harris, and Hass. In those cases, the ends of the exclusionary rules were thought adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial. We reaffirm this assessment of the competing interests, and hold that a defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained that is inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.” As constitutional analysis slowly evolves, it is this latter appreciation that even unconstitutionally seized evidence may well have social utility for impeachment purposes that is reflected in the change of the Maryland 700 Rules that took place on July 1, 1977.

Under the