In Re Appeal No. 245, September Term, 1975 From the Circuit Court for Kent County

Orth, C. J., delivered the opinion of the Court. STATEMENT OF THE CASE On 6 February 1975 two petitions were filed in the Circuit Court for Kent County, sitting as a Juvenile Court, against appellant, 1 a youth then seventeen years of age. Both alleged ¹³³ that he was a delinquent child. 2 One gave as reason that on 9 July 1974 he had stolen a bike belonging to C. Daniel Saunders (Code, art. 27, § 340). The other gave as reasons that on 12 December 1974 he had (1) received a pair of binoculars belonging to George Outten, knowing them to have been stolen (Code, art. 27, § 467), and (2) stolen the binoculars (Code, art. 27, § 341).

The petitioner in each petition was William T. Blackiston, Jr., Deputy Sheriff of Kent County. At an adjudicatory hearing which terminated on 3 March 1975, the court found under the petition concerning the binoculars that appellant was a delinquent child. It dismissed the petition concerning the bike. At a dispositional hearing on 20 March 1975 appellant was committed to the Secretary of Health and Mental Hygiene for placement at Maryland Training School.

The Secretary was directed to provide psychiatric and psychological services. An appeal was noted. THE CONFESSION Background At the adjudicatory hearing, 3 a confession obtained by the authorities from appellant was challenged. Evidence was received on the motion to suppress it.

On 11 July 1974 Saunders reported the theft of his bike to the office of the ¹³⁴ Sheriff for Kent County. On 12 December 1975 Outten reported to that office that his home had been broken and entered and that personal property had been stolen. Blackiston and Deputy Sheriff Jess Metcalfe investigated the crimes. Their investigation led them to appellant, one of a group of suspects.

On 18 January 1975, about 4:00 p.m., Blackiston and Metcalfe, in uniform and wearing side-arms, went in their official car to the trailer home where appellant lived with his parents. Appellant was the first “suspect” they went to see. Blackiston said: “I wasn’t sure he was my man. I wanted to investigate to find out who was.” The deputies told the parents they wanted to see appellant.

Appellant appeared from within the trailer, and Blackiston took him to the car parked nearby to interrogate him. Blackiston testified that he did this “Because it’s generally my policy to do an interrogation on my grounds.” Appellant was born in January 1958. At age 8 years and 10 months he was in the second grade in a school in Wilmington and was given an I.Q. test known as the WISC (Western Intelligence Scale for Children). His verbal score was 74, performance was 78 and full scale I.Q. was 73.

The next year he was placed in the “Special and Emotionally Maladjusted” third grade class in a Kent County school. In 1968, 1969 and 1970 he was in primary “special education” at Millington. “Special education” was “a special placement in classes for children who cannot function or get along in a regular class for various reasons.” In May 1971 he was again given the WISC test and also an achievement test known as WRAT. On the former his verbal score was 75, his performance quotient was 92 and his full scale I.Q. was 81. On the WRAT test his reading level was 3.9, spelling was 4.3 and arithmetic was 3.3.

In 1971 he attended the sixth grade at Galena Middle School. He was present 66 days and absent 8 days. He withdrew and his records were sent to Chestertown Middle School on 3 January 1972, although it seems that he did not attend that school. On 14 February he was transferred to Cambridge State Hospital where he remained until 27 March 1974, when he was discharged to his parents.

There were home visits, so that the actual time spent in that Institution ¹³⁵ was about one year and four months. 4 The Institution’s final diagnoses on discharge included “adjustment reaction of adolescence, conduct disturbance” and “borderline mental retardation with other (and unspecified) condition.” 5 The condition on release and prognosis was, “Patient’s condition on leaving was excellent from the physical and psychiatric viewpoint. However, prognosis is considered guarded if patient doesn’t have enough supervision at home and if he doesn’t have a job in the community.” Appellant did not return to school. This was the background of the youth Blackiston took to the police car to interrogate. Circumstances Surrounding the Obtaining of the Confession Blackiston sat in the front seat and placed appellant in the back seat.

Blackiston testified that he read all the Miranda warnings to appellant and that appellant said he understood them. “And I said, ‘Do you knowingly waive these rights?’ and [appellant] didn’t know what the words ‘knowingly waive’ meant, so I explained to him that if he wanted to talk to me about Mr. Outten’s property he could stop any time and not tell me anything. And he advised me okay.” There was evidence tending to show that the confession was voluntarily in the traditional sense. Blackiston said that neither he nor Metcalfe made any threats, gave any promises or extended any inducements to appellant to get him to talk. Metcalfe, who had remained at the trailer to talk to the parents, appeared about the time Blackiston finished giving the Miranda warnings and sat in the front ¹³⁶ seat next to Blackiston.

The interrogation proceeded. Appellant gave a verbal statement. Appellant’s father gave his version of what occurred: “He drove up to the yard and my wife went to the door and said a Trooper car was here, and I said, ‘What - Trooper,’ and she said, ‘From Maryland.’ Then they came up to the door and one had his hat on [apparently Blackiston] and the other one didn’t. Before he knocked on the door she opened the door.

And he said — I can’t tell one from the other, but the one that had the hat on said, ‘Could I talk to Stanford?’, and she said, ‘Come on in.’ They came in and the short one, the one that didn’t have the hat on, wasn’t completely in the door. My wife called to [appellant], he was in the back, in the back bedroom and he came out of the trailer on thé porch part. She said to him, ‘They want to talk with you.’ Then the one that had the hat on said, ‘Boy, go to the car.’ They went on to the car. Then the one that didn’t have the hat on, he went out first.

He was the last one getting in the car. I watched out the window.” He denied that the deputies told them why they wanted to talk to appellant. Appellant told what occurred when the deputies arrived: “I was in the bedroom, in the back bedroom in the trailer, getting my.shirt. Then my mother called me out there on the porch because the policemen was there.

Then the young one, with the hat on, asked my father could he ask me some questions. The one in the doorway didn’t say anything. Then we went out into the car and that was when he started asking me questions.” According to appellant, he, Blackiston and Metcalfe went out to the car at the same time. Metcalfe said, addressing appellant by his first name, “_, we’ve got some trouble around here and I think you know about it.” Then ¹³⁷ Blackiston “started reading off my rights.” Appellant denied, however, that anything was said about a lawyer.

He said he went with the “policemen” because he was afraid they would take him to Chestertown and lock him up. 6 On cross-examination the State pursued the matter of the voluntariness of the statement in the traditional sense: “Q. Now, did they ever threaten to hit you? A. No sir. Q. Or beat you? A. No sir.

Q. Did they make any promises or do anything to you that was bad? A. No sir.” Blackiston was recalled by the State. He said that when he and appellant went to the car, Metcalfe remained at the trailer to talk to the parents. About ten or fifteen minutes elapsed before Metcalfe came to the car.

Blackiston said that when he and appellant first arrived at the car “I introduced myself and advised [appellant] that I wanted to talk to him about George Outten’s home being broken into and some things being taken.” Blackiston iterated that he then gave the Miranda warnings, and that appellant said he understood them and waived them. On cross-examination, asked why he did not talk to appellant in the trailer about the Outten matter, Blackiston replied: “I do it differently at times, but I generally take the people out in the car to talk.” He said he tried “to deal with” both adults and juveniles the same way. ¹³⁸ Admissibility of the Confession The judge below granted the motion to suppress the confession. Upon our independent constitutional appraisal, see Davis v. North Carolina, 384 U. S. 737, 741-742 (1966), we think it was properly excluded. We reach this conclusion for alternative reasons.

The confession was inadmissible both because an effective waiver of the privilege against self-incrimination and the right to retained or appointed counsel was not shown, and because it was the fruit of a poisonous tree. The judge below apparently relied on the failure to show a valid waiver of the constitutional privilege against self-incrimination and right to counsel in holding that the confession was to be excluded. We are in accord. The rule of Miranda v. Arizona, 384 U. S. 436 (1966) is that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id., at 444 .

It is manifest that the statement here was obtained during a custodial interrogation. “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. The Court noted, at 444, n. 4: “This is what we meant in Escobedo [v. Illinois, 378 U. S. 478 (1964)] when we spoke of an investigation which had focused on an accused.” See Myers v. State, 3 Md. App. 534 (1968); Duckett v. State, 3 Md. App. 563 (1968). Effectuation of the Miranda rights may be waived “provided the waiver is made voluntarily, knowingly and intelligently.” Miranda , at 444. “After such warnings have been given, and such opportunity [to exercise the rights] afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Id., at 479 . “If the interrogation continues ¹³⁹ without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. .. .

This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U. S. 458 , 58 S. Ct. 1019 , 82 L. Ed. 1461 (1938), and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” 384 U. S., at 475. “Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Id., at 476. Although “[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver,” id., at 475, we believe that the State did not meet its heavy burden to demonstrate that appellant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

In reaching this determination, we have considered the background of appellant, his mental capacity, his education, the separation from his parents in order to interrogate him, the place of interrogation and its conduct by two armed officers. The “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights and do not presume acquiesence in their loss. Johnson v. Zerbst, supra, at 464. In short, upon the particular facts and circumstances surrounding this case, including the background, experience and conduct of appellant, we cannot say that appellant, in the constitutional sense, intelligently relinquished or abandoned his known rights or privileges. ¹⁴⁰ The alternative reason why we think the confession here was inadmissible requires a look at the doctrine of the fruit of the poisonous tree as it applies in Maryland.

On 14 January 1963 the Supreme Court of the United States decided Wong Sun v. United States, 371 U. S. 471 . Nearly half a century before, the Court held that evidence seized during a search unlawful under the Fourth Amendment could not constitute proof against the victim of the search. Weeks v. United States, 232 U. S. 383 (1914). The exclusionary prohibition extended as well to the indirect as the direct products of such invasions.

Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920). The exclusionary rule had traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It followed from the Court’s holding in Silverman v. United States, 365 U. S. 505 (1961), that the Fourth Amendment may protect against the overhearing of verbal statements as well as the more traditional seizure of tangible evidence. Thus, verbal evidence which derived so immediately from an unlawful entry and an unauthorized detention may be no less the “fruit” of official illegality than the more common tangible fruits of an unwarranted intrusion.

That is, the policies underlying the exclusionary rule do not invite any logical distinction between physical and verbal evidence. Wong Sun, 371 U. S., at 486 . 7 The fruit of the poisonous tree doctrine may not be applicable where the prosecution has learned of the evidence from an independent source or where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. The Court said, id., at 487-488: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but .for the illegal actions of the police. ¹⁴¹ Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Although the Fourth Amendment was held to apply to the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), the Court of Appeals of Maryland promptly expressed the belief that Wong Sun was not intended to, and did not control state prosecutions. As far as this State was concerned, Wong Sun was buried.

When original appellate jurisdiction in criminal causes devolved on the Court of Special Appeals, it followed the lead of the Court of Appeals. For twelve years, those accused and convicted of crimes endeavored from time to time to resurrect Wong Sun , but their attempts were firmly rejected by the appellate courts of Maryland, which steadfastly adhered to the view that Wong Sun did not apply. See cases cited in Ryon v. State, 29 Md. App. 62 , n. 13 at 73-75 (1975). In Carter v. State, 274 Md. 411 , n. 9 at 431-432, decided 11 April 1975, the Court of Appeals indicated some doubt as to its holdings with respect to Wong Sun , but left for another time the question of their continuing viability.

That time came three days later when Everhart v. State, 274 Md. 459 , was decided. Characterizing as “dicta” the prior declarations that Wong Sun “involved a federal prosecution, not a state one”, and that Wong Sun was “not intended to, and does not control prosecutions in state courts”, and noting that “such statements would now appear to have been erroneously gratuitous observations”, id., n. 4, at 478-480, the Court exhumed Wong Sun . It applied the Wong Sun rationale in holding that when information serving as a basis for probable cause was obtained or derived as a result of an illegal search and seizure, the doctrine of the “fruit of the poisonous tree” applies to preclude the use of such information as the basis for a search warrant. Id., at 478-482 . 8 ¹⁴² It now appears that the Supreme Court always deemed Wong Sun controlling in state prosecutions.

On 26 June 1975 it decided Brown v. Illinois, 95 S. Ct. 2254 , and the decision was firmly bottomed on Wong Sun . In applying the Wong Sun holdings to determine the validity of a conviction obtained in a criminal prosecution by the State of Illinois, the Court simply assumed without question that Wong Sun controlled. If this left any doubts as to the status of Wong Sun in Maryland criminal prosecutions, they were swiftly resolved. On 30 June 1975 the Supreme Court granted certiorari in the case of Ryon v. Maryland, 95 S. Ct. 2674 .

Minnie Sue Ryon had been tried in the Circuit Court for Harford County, convicted of murder in the first degree, and sentenced to life imprisonment. We affirmed the judgment on direct appeal, holding that Wong Sun did not apply to exclude a confession obtained from Mrs. Ryon. Ryon v. State, No. 376, September Term, 1973, filed 11 June 1974, unreported. The Court of Appeals denied certiorari, 272 Md. 747 (1974).

The Supreme Court vacated the judgment of the Court of Special Appeals and remanded the cause to that Court “for further consideration in light of Brown v. Illinois." Complying with this mandate, we applied the Wong Sun teachings, reversed the judgment below because Mrs. Ryon’s confession was the fruit of the illegal arrest of her, and thus, was admitted in evidence in error, and remanded the case for a new trial. Ryon v. State, 29 Md. App. 62 (1975). It is clear that the Wong Sun doctrine is now the law of this State.* ***** 9 ¹⁴³ We have indicated that the confession was obtained from appellant during a “custodial interrogation” of him within the contemplation of Miranda . We think also that appellant was in custody at the time within the contemplation of Wong Sun .

When Blackiston took appellant to the car and placed him in the back seat in order to interrogate him, appellant was deprived of his freedom of action in a significant way and was, in fact, being detained. We do not think that a full-fledged arrest is a prerequisite of the application of the Wong Sun doctrine. Cf. Morales v. New York, 396 U. S. 102, 105-106 (1969).

The question is whether the detention was illegal. We believe it was. Courts Art. § 3-821, as in effect on 18 January 1975, provided: “A child may be taken into custody: (1) Pursuant to the order of the court under the provisions of this subtitle; (2) Pursuant to the law of arrest; (3) By a law enforcement officer or other person authorized by the court when he has reasonable grounds to believe that the child is in immediate danger from his surroundings and that his removal is necessary for his protection; or (4) By a law enforcement officer or other person authorized by the court when he has reasonable grounds to believe that the child has run away from his parents, guardian, or legal custodian.” It is clear that appellant wras not taken into custody under (1), (3) or (4) of the statute. Nor is there any indication that a warrant had been issued for his arrest.

Further, the record does not reflect that the deputies had probable cause for a warrantless arrest. Blackiston said that after a report of the crimes had been received from the victims, an investigation was made, after which he and Metcalfe went to talk to appellant. Asked if he went to appellant’s home “for the possibility of having him confess to the crime of B & E’s around in that area”, Blackiston said, “Not at first. I went ¹⁴⁴ there to investigate a crime that took place and wanted to know what he knew about it.

I never know whether they will confess or not.” 10 Metcalfe said they “had reason to think” appellant was involved in the breaking of the Outten home and that they “understood” that appellant “had been riding around Golts” (the place where appellant lived), on a bike similar to the stolen one. This, absent further explanation, is obviously so insufficient to constitute probable cau.se for an arrest that discussion is unwarranted.* 11 See Stanley v. State, 19 Md. App. 507 (1974), cert. den., 271 Md. 745 ; Hearsay and Probable Cause: An Aguilar and Spinelli Primer, by Judge Moylan of this Court, 25 Mercer L. Rev. 741 (1974). Nor can we find from the record before us that appellant waived his right not to be taken into custody except upon legal grounds. If he freely and voluntarily went to the car with Blackiston and effectively consented to enter and remain therein to be questioned, the burden was on the State to so establish.

The record does not show, in the circumstances here, that the State met this burden. We conclude that the detention of appellant, prior to and during the interrogation of him, was unauthorized. Having found that the detention of appellant was illegal, we consider next the effect of this illegal conduct by the authorities on the admissibility of the confession. In Ryon secundus we found from Wong Sun and the cases related thereto, that statements obtained following an illegal detention were not rendered inadmissible simply because of that illegality, nor were they rendered admissible simply because the Miranda warnings were fully given. 29 Md. App. 62 at 71 .

Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of: (a) the voluntariness of the statement, which is a threshold requirement; ¹⁴⁵ (b) compliance with the Miranda safeguards, which is as important in determining whether the statements were obtained by exploitation of the illegal conduct; (c) other relevant factors, such as (i) the temporal proximity of the detention and the confession; (ii) the presence of intervening circumstances; (iii) the purpose and flagrancy of the official misconduct. In the context of this second reason why the confession was inadmissible, that it was the fruit of a poisonous tree, we assume, for the purpose of decision that the statement was voluntary, and that there was full compliance with the Miranda safeguards. We, therefore, look to the other relevant factors. The confession followed close upon the heels of the illegal detention; there was no significant time lapse.

There were no