In re Darryl P.

MOYLAN, J. This appeal raises a single contention. An analysis of that contention, however, implicates enough issues to justify a semester of law school. It is, in a phrase, Hydra-headed. The opinion turns out to be a study of differences.

There is a potentially critical difference between an unlawful arrest and an unconstitutional arrest. There is a difference between a federal violation and a state violation. Even at the state level, ¹²⁰ there is a significant difference between a constitutional violation and a sub-constitutional violation. An analysis of these differences is necessary to identify the trigger for the Exclusionary Rule of Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).

An analysis of these differences may be necessary to mark the threshold for the “Fruit of the Poisonous Tree” Doctrine. There is a vast difference between the influence on confession law of the Sixth Amendment right to counsel, and the Fifth Amendment privilege against compelled self-incrimination. There is a difference between the constitutional right to counsel under Massiah and the prophylactic right to counsel under Miranda. There is a difference between the respective triggers of formal accusation and of custodial interrogation, just as there is a difference between the respective coverages that are triggered.

There is a difference in how separate rights to counsel are invoked. There is a difference in how separate rights to counsel are waived. There may (or may not) be a difference between an involuntary confession under the Fifth Amendment privilege according to Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), and an involuntary confession under the Maryland common law according to Hillard v. State, 286 Md. 145 , 406 A.2d 415 (1979). There may, on the other hand, be a venerable but long-neglected identity between the two.

Hofv. State, 97 Md.App. 242 , 629 A.2d 1251 (1993), aff'd on other grounds, 337 Md. 581 , 655 A.2d 370 (1995). A sure sense of these differences is necessary in a case, such as this, where separate constitutional protections cover the same territory. Litigants too often confront us with a constitutional kaleidoscope, and constitutional overlap can quickly degenerate into constitutional chaos.

It does not help to have a Sixth Amendment factor intruding into a Fifth Amendment analysis. It does not help to have a Fifth Amendment factor intruding into a Sixth Amendment analysis. It does not help to have the whole case put in a Fourth Amendment framework of analysis when the Fourth Amend ¹²¹ ment is not even involved. It is important to keep our analyses in watertight compartments.

As the appellant looses his blunderbuss blast at the non-suppression of his confession, however, his grievances are far from being neatly compartmentalized. To mix metaphors, we face the daunting task of trying to unscramble the eggs. The Present Case In the Circuit Court for St. Mary’s County, sitting as a juvenile court, the appellant, Darryl P., was, upon an agreed statement of facts, found to be a delinquent for having been involved in an attempted murder. The appellant, then aged 17, was charged with having been involved in the January 6, 2011 shooting of Terrell Swales during an attempted robbery.

The convoluted procedural background throws little light on the single contention raised by the appellant, to wit, that at a pretrial suppression hearing, the judge erroneously ruled that an inculpatory statement given by him to the police was admissible in evidence. The appellant was originally charged, as an adult, with first and second degree assault and with the use of a handgun. The appellant turned himself in on a warrant that had been issued by the District Court of Maryland for St. Mary’s County. On February 23, 2011, the appellant was released on $10,000 bail.

When interviewed by a deputy sheriff on that occasion, the appellant invoked his right to counsel and all questioning ceased. While his case was still pending in the District Court, the appellant retained counsel and counsel entered his appearance. The appellant was free on bail from February 23, 2011 until he was rearrested on May 6, 2011. The rearrest was on the basis of an indictment returned by the Grand Jury for St. Mary’s County on April 6, 2011, charging the original crimes charged in the District Court warrant as well as several additional charges based on the same criminal conduct.

The arrest warrant itself was issued by the circuit court on April 15, 2011. On October 11, 2011, jurisdiction over the appellant’s case was waived from the criminal court to the juvenile court. ¹²² After jurisdiction had been waived to the juvenile court, the appellant filed, on October 19, 2011, a motion to suppress an inculpatory oral statement he had made to the police following his rearrest on May 6. A suppression hearing was conducted on November 17. On November 29, the suppression hearing judge filed a 14-page Opinion and Order of Court in which he denied the motion to suppress.

Except to explain how the appellant came to be the appellant, this procedural history is largely immaterial. The appellant challenges the admissibility of the inculpatory remarks he made to the police. Whether used to find an adult to be guilty of crime or a juvenile to be delinquent, the confession will be assessed by the same standards. The Five Subcontentions The appellant raises a single contention, but in arguing that contention he lays down a broad enfilade of subcontentions.

In appellant’s brief there are even bald allegations invoking no less than three separate articles of the Maryland Declaration of Rights. Somewhat more modestly, five subcontentions were actually raised and argued at the suppression hearing and are, therefore, proper grist for the appellate mill. We have reordered their sequence to make for a more fluid analysis: 1. The questioning of the appellant on the early morning of May 6, 2011 followed his “unlawful arrest” and is, therefore, suppressible under the “fruit of the poisonous tree” doctrine; 2.

The statement was taken in violation of his prophylactic right to counsel as protected by Edwards v. Arizona; 3. The statement was taken in violation of the appellant’s Fifth Amendment privilege against compelled self-incrimination; 4. The statement was involuntary according to the Maryland common law; and 5. The statement was taken in violation of the appellant’s Sixth Amendment right to the assistance of counsel. ¹²³ Arrest, Rearrest, and Bail The appellant’s thesis is that at a time when he was already free on bail and had a right to be free of any further custodial restraint, he was erroneously rearrested and that the confession in issue followed as a proximate result of that improper rearrest.

It follows, the appellant argues, that the confession should have been suppressed as “the fruit of the poisoned tree.” On this subcontention, the appellant may well be right that the court system stumbled in failing to afford him all the liberty that he was entitled to as a result of his bail status. Whether the judicial machinery performed well or ill, however, the possible bureaucratic misstep is, as a reason for suppressing evidence of crime, a tempest in a teapot. Even be it in a teapot, however, the tempest is worthy of assessment. To make such an assessment, however, it would be helpful if we could thoroughly understand the early history of the appellant’s prosecution.

That history, however, is frustratingly opaque. We now know, as a result of reviewing the agreed statement of facts that was read to the juvenile court on December 28, 2011, that the underlying crime in this case occurred on January 6, 2011, when the appellant, in the course of an attempted robbery, shot and wounded Terrell Swales. That statement of facts was not presented at the suppression hearing, however, and the suppression hearing court was not informed of what the underlying crime consisted. If we should ultimately be called upon to decide, on the basis of this subcontention, whether the court was right or wrong in declining to suppress the confession, we would have to factor out our knowledge about the circumstances of the underlying crime because our review of the suppression hearing would be limited to what was actually presented to the suppression hearing.

On the other hand, there was a file folder in front of the suppression hearing judge, but we are not told what was in that file folder. At some subsequent time, we infer from allegations in the appellant’s brief and not from any evidence presented at the ¹²⁴ suppression hearing, the police obtained an arrest warrant for the appellant from the District Court, charging him with 1) first-degree assault, 2) second-degree assault, and 3) the use of a handgun in a crime of violence. 1 The record in this case does not contain that arrest warrant and it was not presented at the suppression hearing. According to counsel, the appellant then “turned himself in” on those charges. How the appellant learned about those charges against him we don’t know.

Did the appellant, as a seventeen-year-old, turn himself in of his own accord or did his parents bring him in or did a lawyer or friend bring him in? We don’t know. Did the appellant turn himself in to the police, or to the State’s Attorney’s Office, or to the District Court? Again, we don’t know.

We are told by counsel that, apparently on February 23, 2011, “[a]ppellant posted a $10,000 bail and was released.” 2 Had the appellant been arrested for a short time after turning himself in or did he have an immediate bail hearing? 3 Was there a condition on the ultimate bail bond that the appellant not leave the state? Was there an actual bail hearing at which the nature of the original crime was at least briefly described? We are told none of this and neither was the suppression court. There is no transcript in the record of any such bail hearing.

Counsel does tell us that “while his case was still in District Court, the appellant retained counsel, who entered his appearance in the District Court case” 4 and ¹²⁵ further that the “appellant was free on bail from 23 February 2011 until he was rearrested on the 6th of May 2011.” The State does not take issue with these factual allegations. As to what progress the case was making or what progress the investigation was making during that 10-week interim, we are told nothing. As to whether the appellant’s lawyer was in contact with the police or in contact with the State’s Attorney’s Office during that time, we don’t know. All we are told is that on April 6, 2011 the Grand Jury handed down an indictment against the appellant based on his alleged criminal actions on January 6, 2011.

An analysis of one aspect of the appellant’s subcontention calls for us to make a comparison of the original District Court charges with the charges in the April 6, 2011 indictment. The record, however, contains no copy of the indictment nor was it summarized in any specific terms at the suppression hearing. From the tell-tale format and language of the charging document used at the juvenile delinquency adjudicatory hearing, however, we may infer the specific charges that the indictment probably contained. The juvenile charging document, however, was neither offered in evidence nor referred to at the suppression hearing.

The appellant’s brief simply states the unilluminating generality that the “indictment included additional charges related to that same offense.” The Opinion and Order of the Court recited that the “indictment which led to Respondent’s later arrest came from the Circuit Court and included a variety of new charges.” What we now know is that the delinquency petition was drawn in seven counts, charging 1) attempted armed robbery, 2) attempted simple robbery, 3) first-degree assault, 4) second-degree assault, 5) reckless endangerment, 6) conspiracy to commit armed robbery, and 7) the use of a handgun. Each count referred to the attack on Terrell Swales on January 6, 2011. Counts 3, 4, and 7 repeated the counts that had been charged before the District Court. Counts 1, 2, 5, and 6 were new.

We will assume that the indictment of April 6, 2011 made the same charges. ¹²⁶ We are also told, in the briefs by both parties, that an arrest warrant for the appellant based on the April 6, 2011 indictment was issued on April 15, 2011. For both of these dates, both parties rely not on anything found in the transcript of the suppression hearing but on the Maryland Judiciary Case Search website. The April 15 date for the issuing of the arrest warrant raises, for us at least, several additional questions. Is an indictment-based arrest warrant issued automatically along with the indictment?

If it is, that would not pose a problem, because the Supreme Court in Gerstein v. Pugh, 420 U.S. 103 , 119 n. 19, 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975), made it clear that such a procedure does not offend the Fourth Amendment: [T]he Court has held that an indictment, “fair upon its face,” and returned by a “properly constituted grand jury,” conclusively determines the existence of probable cause and requires issuance of an arrest warrant without further inquiry. Ex parte United States, 287 U.S. 241, 250 [ 53 S.Ct. 129 , 77 L.Ed. 283 ] (1932). See also Giodenello [Gior denello] v. United States, 357 U.S. 480, 487 [ 78 S.Ct. 1245 , 2 L.Ed.2d 1503 ] (1958). The willingness to let a grand jury’s judgment substitute for that of a neutral and detached magistrate is attributable to the grand jury’s relationship to the courts and its historical role of protecting individuals from unjust prosecution.

See United States v. Calandra, 414 U.S. 338, 342-46 [ 94 S.Ct. 613 , 38 L.Ed.2d 561 ] (1947 [1974]). (Emphasis supplied). If automatically issued, however, why would not the arrest warrant have been issued on the same day that the indictment itself was filed? Why a 9-day delay?

Or is it the case, in St. Mary’s County at least, that the issuance of the arrest warrant requires an actual application by the police or by the State’s Attorney’s Office to a warrant-issuing judge? If that be the case, why, during that 9-day interim, was not the appellant or the appellant’s lawyer of record notified of the indictment and given the opportunity to come in and explain to the court or to the State’s Attorney’s Office (whether the explanation ulti ¹²⁷ mately sufficed or not) that the appellant had already been placed on bail for that same offense? Above and beyond that query, moreover, what happened to the arrest warrant for the next three weeks, between April 15 and May 6 when it was finally served? Presumably the police knew where the appellant lived.

They knew where the appellant’s mother, who had posted the bond, lived. It is the appellant’s position that the second arrest warrant, that of April 15, 2011, should never have issued because the appellant had already been permitted bail by the District Court on February 23, 2011, for the same offense, and that that original bail should have continued to guarantee his court appearance. The appellant relies on several Maryland Rules of Procedure and one statutory provision that touch upon the bail question, when a defendant appears first before the District Court and makes bail and is subsequently before the circuit court on the same or substantially similar charges. A simple movement of the identical case from District to circuit court would seem to be covered by Maryland Rule 4-216. 1(b): (b) Continuance of previous conditions.

When conditions of pretrial release have been previously imposed in the District Court, the conditions continue in the circuit court unless amended or revoked pursuant to section (c) of this Rule. Should the filing of an indictment or a criminal information have been the cause for the movement of the case upward to the circuit court, the conditions of pre-trial release may be amended, but certain procedural restrictions are attached. Maryland Rule 4-216.1(c) covers that situation: (c) Amendment of pretrial release order. After a charging document has been filed, the court, on motion of any party or on its own initiative and after notice and opportunity for hearing, may revoke an order of pretrial release or amend it to impose additional or different conditions of release.

If its decision results in the detention of the defendant, the court shall state the reasons for its action ¹²⁸ in writing or on the record. A judge may alter conditions set by a commissioner or another judge. (Emphasis supplied). With specific reference to those occasions when the State’s Attorney wants an arrest warrant to be issued along with an indictment, Maryland Rule 4-212(d)(2) provides: Upon the request of the State’s Attorney, the court may order issuance of a warrant, ... if an indictment has been filed against the defendant; and (A) the defendant has not been processed and released pursuant to Rule 4-216 or 4-216.1, or (B) the court finds there is a substantial likelihood that the defendant will not respond to a summons.[ 5 ] ...

Unless the court finds that there is a substantial likelihood that the defendant will not respond to a criminal summons, the court shall not order issuance of a warrant for a defendant who has been processed and released pursuant to Rule 4-216 or 4-216.1 if the circuit court charging document is based on the same alleged acts or transactions. (Emphasis supplied). Maryland Code, Criminal Procedure Article, Section 5-206 reflects the legislative attitude toward the continuity of the ¹²⁹ bail determination when “a new charging document” is based on “the substantially same set of facts”: § 5-206. Reinstatement of bail after discharge at preliminary hearing.

In a criminal case, a judge may reinstate any bail, bond, or recognizance for criminal charges discharged at a preliminary hearing in the District Court, if a new charging document arises out of the substantially same set of facts. (Emphasis supplied). In the nine-day period between the filing of the indictment and the issuance of the arrest warrant, there was no notice of anything to the appellant or to the appellant’s counsel. There was no opportunity for a hearing.

The State responds that the papers from the District Court did not arrive at the circuit court until April 21, 2011, six days after the arrest warrant was issued. The State asserts that the warrant-issuing judge was, therefore, unaware that bail had already been posted in the District Court. Though that may be the case, that does not negate the self-evident fact that the State’s Attorney’s Office, which presumably applied for the arrest warrant and which unquestionably prepared the indictment and obtained the indictment, knew full well about the appellant’s bail status. The ignorance excuse won’t fly.

The suppression hearing court, however, gave this “illegal arrest” argument based on non-compliance with the Rules of Procedure short shrift: Respondent first attacks the arrest as illegal under Maryland Rule 4-216(g) and (h) [now Rule 4-216.1(b) and (c) ], and argues that as such, the statement is fruit of the poisonous tree. Maryland Rule 4-216(g) provides that “[w]hen conditions of pretrial release have been previously imposed in the District Court, the conditions continue in the circuit court unless amended or revoked pursuant to section (h) of this Rule.” In this case, the release conditions previously imposed related to the subset of counts that were charged in the District Court. The indictment which led to Respondent’s later arrest came from the Circuit Court and ¹³⁰ included a variety of new charges. The Court finds that the rule cited does apply to situations where a case is transferred from the District Court to the Circuit Court, but does not apply to Respondent’s present situation, in which a separate indictment, alleging new offenses, was later issued by the Circuit Court.

For this reason, Respondent’s argument does not avail. (Emphasis supplied). We cannot agree, however, that, because the sets of charges against the appellant in the indictment and the original charges against the appellant in the District Court were not identical, the rules controlling the continuance or discontinuance of bail do not apply. All parties agree that both sets of charges arose out of precisely the same criminal incident of January 6, 2011.

There was no new information about that crime available on April 6, 2011 that was not already known on February 16, 2011. Rule 4-212(d)(2) explicitly states that, after indictment, “the court shall not order the issuance of a warrant for a defendant” who has already been “processed and released” by the District Court if the new “charging document is based on the same alleged acts or transactions.” (Emphasis supplied). The sameness that is the critical criterion inheres not in the charges themselves but in the underlying “acts or transactions” that give rise to the charges. Criminal Procedure Article, Section 5-206 is emphatically clear that the continuity of the bail status may rest upon the fact that the “new charging document arises out of the substantially same set of facts.” (Emphasis supplied).

That two sets of charges must arise out of “the substantially same set of facts” is by no means a statement that the two sets of charges must be identical. 6 An indictment will always ¹³¹ be more complex than the initial charges made by an officer in the immediate wake of a crime. An officer on the scene is not a legally trained strategist. An indictment, by contrast, is a carefully designed and frequently pre-fabricated product of a State’s Attorney’s Office’s strategic pleading experience. With multi-count thoroughness, it will cover every conceivable crime that a given set of facts could possibly produce, frequently with significant overlap and deliberate redundancy.

It will rarely be identical with the original charges, but it will nonetheless arise out of the same facts. We cannot agree that the controlling rules affecting bail do not apply because the sets of charges were not identical. The difference between the two sets of charges in this case was simply the difference between the first draft and a finished product. The appellant may well win this tempest or battle in the teapot, however, without necessarily winning the larger war.

To pick up on the metaphor on which the appellant rests this entire subcontention, he blithely assumes that a violation of Maryland Rule 4-212(d)(2), for instance, is what Nardone v. United States, 308 U.S. 338, 341 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939), first called “a poisonous tree.” That is by no means the case. The Fourth Amendment Is Not Involved We hold that all evidence obtained by searches and seizures in violation of the Constitution is ... inadmissible in a state court. ... Mapp v. Ohio (1961) The ultimate issue—the only issue—before us is that of whether the appellant’s confession should be excluded from evidence. Ordinarily, evidence is admissible if it is competent, relevant, and material; that is, if it will assist the fact finder in the search for truth.

On rare occasions, if there is broad societal disapproval of the means by which the evidence was procured, the evidence may be excluded, but only by means of some exclusionary rule expressly created to apply to such a circumstance. For the allegedly improper arrest and detention the appellant complains of in this case, there is only one ¹³² exclusionary rule the appellant could conceivably call upon. That is the Exclusionary Rule of Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). For the last 52 years, it has been available to redress violations of the federal Fourth Amendment in criminal trials in state courts.

The appellant, however, must qualify for access to Mapp . The Exclusionary Rule of Mapp is not a generic remedy to cure every imaginable wrong. The Exclusionary Rule is reserved for the redress of violations of the federal Fourth Amendment and for nothing else. It is not concerned with violations even of state constitutions.

A fortiori, it is not concerned with sub-constitutional violations, such as violations of state statutes or of state rules of court. The appellant does not suggest that he is relying upon anything other than the Exclusionary Rule of Mapp , but neither does he address his entitlement to Mapp . He seems to take that for granted. He may not.

A. A Violation of State Law Is Not a Fourth Amendment Violation Virginia v. Moore, 553 U.S. 164, 166 , 128 S.Ct. 1598 , 170 L.Ed.2d 559 (2008), posed the issue (the very issue now before us) at the outset of the 9-0 opinion of the Court: We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law. (Emphasis supplied). In that case, Portsmouth, Virginia police officers stopped a car driven by Moore. When the officers determined that Moore’s driver’s license had been suspended, they arrested him for the misdemeanor of driving on a suspended license.

As an incident of that custodial arrest, the officers searched him and recovered 16 grams of crack cocaine and $516 in cash from Moore’s person. 553 U.S. at 166-67 , 128 S.Ct. 1598 . As a matter of law, however, that custodial arrest was an unlawful arrest according to the statutory law of Virginia. Justice Scalia’s opinion summarized the Virginia law: ¹³³ Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. 553 U.S. at 167 , 128 S.Ct. 1598 (emphasis supplied).

Because Virginia law, like Maryland law, “does not, as a general matter, require suppression of evidence obtained in violation of state law,” id, it was necessary for Moore to seek succor in the federal Fourth Amendment. Because the physical evidence was unquestionably the result (or “fruit”) of his unlawful arrest, “Moore argued ... that suppression was required by the Fourth Amendment.” 553 U.S. at 168 , 128 S.Ct. 1598 . A panel of Virginia’s intermediate appellate court agreed with Moore’s Fourth Amendment argument, as ultimately did the Virginia Supreme Court. The Court reasoned that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to a citation, the arrest search violated the Fourth Amendment.

Id. (emphasis supplied). B. An Important Semantic Distinction The United States Supreme Court reversed the Supreme Court of Virginia. Before turning to its analysis, however, it behooves us to make the critical semantic distinction between an “unlawful arrest” according to state law and an “unlawful arrest” pursuant to the Fourth Amendment.

It would be helpful, of course, if people would always refer to the latter not simply as an “unlawful arrest” but as an “unconstitutional arrest.” Unfortunately, people do not always talk or write with such precision, and it remains tempting for zealous advocates to take the phrase “unlawful arrest” out of its less significant state context and to use it in a context wherein it may hopefully be given deeper constitutional significance. The Supreme Court, referring to its use of the phrase “lawful ¹³⁴ arrest” in United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), explained in Virginia v. Moore that when it had earlier used the phrase “lawful arrest,” it was using it exclusively in the constitutional sense. [W]e have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Moore correctly notes that several important state-court decisions have defined the lawfulness of atrest in terms of compliance with state law. ... [I]t is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson used “lawful ” as shorthand for compliance with constitutional constraints. 553 U.S. at 177 , 128 S.Ct. 1598 (emphasis supplied). C. The Core Concern of Probable Cause Keeping that important semantic distinction in mind, we return to the analysis in Virginia v. Moore. The Virginia v. Moore opinion made it emphatically clear that an arrest based on probable cause to believe that the arrestee committed the crime for which he is being arrested is a reasonable seizure of the person under the Fourth Amendment and that no further constitutional justification is required.

In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable. 553 U.S. at 171 , 128 S.Ct. 1598 (emphasis supplied). Quoting its earlier opinion in Michigan v. DeFillippo, 443 U.S. 31, 36 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (1979), Virginia v. Moore reaffirmed that a warrantless arrest satisfies the Constitution so long as the officer has “probable cause to believe that the suspect ¹³⁵ has committed an offense.” ... Neither Di Re [United States v. Di Re, 332 U.S. 581 , 68 S.Ct. 222 , 92 L.Ed. 210 (1948) ] nor the cases following it held that violations of state arrest law are also violations of the Fourth Amendment, and our more recent decisions, discussed above, have indicated that when States go above the Fourth Amendment minimum, the Constitution’s protections concerning search and seizure remain the same. 553 U.S. at 173 , 128 S.Ct. 1598 (emphasis supplied).

D. Statutory Violations, State and Federal, Are Sub-Constitutional Just as the violation of a state arrest statute is not unconstitutional per se, neither is a violation of a federal arrest statute. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest. 553 U.S. at 169 , 128 S.Ct. 1598 (emphasis supplied). In a series of landmark decisions over four decades, the Supreme Court has declined to treat violations of state law as violations of the Fourth Amendment and as a basis, therefore, for applying the Exclusionary Rule of Mapp v. Ohio: Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law.

In Cooper v. California, 386 U.S. 58 , 87 S.Ct. 788 , 17 L.Ed.2d 730 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we have said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id. at 62 [ 87 S.Ct. 788 ], but regardless of state rules, police could search a ¹³⁶ lawfully seized vehicle as a matter of federal constitutional law. In California v. Greenwood, 486 U.S. 35 , 108 S.Ct. 1625 , 100 L.Ed.2d 30 (1988), we held that search of an individual’s garbage forbidden by California’s Constitution was not forbidden by the Fourth Amendment. “[W]hether or not a search is reasonable within the meaning of the Fourth Amendment,” we said, has never “depended] on the law of the particular State in which the search occurs.” Id. at 43 [ 108 S.Ct. 1625 ].

While “[individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution,” id., state law did not alter the content of the Fourth Amendment. We have applied the same principle in the seizure context. Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices—even practices set by 'rule.

While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.” Id. at 815 [ 116 S.Ct. 1769 ]. 553 U.S. at 171-72 , 128 S.Ct. 1598 (emphasis supplied). E. The Arrest Sub Judice Passed Constitutional Muster The arrest of the appellant in this case was indisputably based on probable cause to believe that he had committed the offenses charged on January 6, 2011. That probable cause was established 1) by the arrest warrant issued on February 16, 2011; 2) confirmed by the bail hearing on February 23, 2011; 3) reconfirmed by the Grand Jury indictment filed on April 6, 2011, Gerstein v. Pugh, 420 U.S. at 119 n. 19, 95 S.Ct. 854 ; and 4) confirmed again by the arrest warrant issued on April 15, 2011. The Fourth Amendment requires nothing ¹³⁷ more.

Neither a Maryland statute nor rule of procedure can render unconstitutional what the Fourth Amendment deems to be constitutional. A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive one unreasonable and hence unconstitutional. 553 U.S. at 174 , 128 S.Ct. 1598 . F. Maryland Has No Exclusionary Rule Even if, arguendo, the appellant had shown a violation of Article 26 of the Maryland Declaration of Rights (he has not), there would be no exclusionary rule available to him for such a violation. The only exclusionary device that the appellant could possibly invoke is the Exclusionary Rule of Mapp v. Ohio and that Rule applies only to violations of the federal Fourth Amendment.

Maryland has no exclusionary rule of its own. In Belton v. State, 228 Md. 17, 20-22 , 178 A.2d 409 (1962), the Court of Appeals explained that Maryland had never excluded evidence of crime based on the methods by which the evidence had been obtained and that, following June 19, 1961, Maryland did so only under the constitutional compulsion of Mapp v. Ohio. In Brown v. State, 397 Md. 89, 98 , 916 A.2d 245 (2007), Judge Raker wrote for the Court of Appeals: Although the alleged conduct may also violate the Maryland Declaration of Rights, because there is no general exclusionary provision in Maryland for such violations, the conduct must violate the federal Constitution to be excluded. (Emphasis supplied).

See also Fitzgerald v. State, 384 Md. 484, 507 , 864 A.2d 1006 (2004) (“Fitzgerald acknowledges our precedent declining to recognize an exclusionary rule under our Declaration of Rights.”); Chu v. Anne Arundel County, 311 Md. 673, 676-86 , 537 A.2d 250 (1988) (The Court thoroughly reviewed the history of federal exclusionary principles and their rejection in Maryland, pointing out particularly how the Maryland General Assembly, in enacting Chapter 74 of the ¹³⁸ Acts of 1958, rejected a proposed exclusionary rule for violations of Maryland’s search warrant statute.). In Miller v. State, 151 Md.App. 235 , 824 A.2d 1017 , cert, denied, 377 Md. 113 , 832 A.2d 205 (2003), this Court was dealing with a suppression claim based on an allegedly unlawful arrest. In rejecting the claim, Judge (now Chief Judge) Krauser wrote for this Court: But even if the officers did not have authority under § 2-102 of the Maryland Criminal Procedure Article to arrest appellant, the court had no legal basis upon which to suppress the evidence obtained from that arrest. Maryland does not have an independent exclusionary rule nor does § 2-102 create one. 151 Md.App. at 246 , 824 A.2d 1017 (emphasis supplied).

In Padilla v. State, 180 Md.App. 210, 232 , 949 A.2d 68 (2008); this Court pointed out specifically that there is no exclusionary rule for a violation of Article 26 of the Maryland Declaration of Rights: Even if we were to hold that the dog scan in the instant case violated Article 26, appellant’s claim would fail. This is because no exclusionary rule exists for a violation of Article 26. (Emphasis supplied). The opinion traced the history of Maryland’s rejection of the exclusionary principle to the Court of Appeals’s decision in Meisinger v. State, 155 Md. 195 , 141 A. 536 (1928).

In the period before Mapp, Maryland courts repeatedly rejected the notion of an exclusionary rule based on Article 26, instead adhering to the rule that “when evidence offered in a criminal trial is otherwise admissible, it will not be rejected because of the manner of its obtention.” Meisinger v. State (1928). See also Lambert v. State [ 196 Md. 57 , 75 A.2d 327 ] (1950); Marshall v. State [ 182 Md. 379 , 35 A.2d 115 ] (1943); Lawrence v. State [ 103 Md. 17 , 63 A. 96 ] (1906). (Emphasis supplied). In tracing the history, the Padilla opinion pointed out that Maryland’s rejection of an exclusionary rule was by no means aberrational: ¹³⁹ In reaffirming Lawrence , the Meisinger Court also noted that its view was “supported and fortified by the weight of authority elsewhere.” In Wolf [v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949) ], the Supreme Court cited Meisinger to place Maryland in the company of twenty-nine other states that, after Weeks [v. U.S.], [ 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914) ] had evaluated the admissibility of evidence obtained by unlawful search and seizure and rejected the Weeks exclusionary rule as a matter of state law. 180 Md.App. at 235-36 , 949 A.2d 68 (emphasis supplied).

Indeed, Meisinger itself had held, 155 Md. at 199 , 141 A. 536 : [T }he Court is not concerned with the collateral question of how such evidence may have been procured. The question of the guilt or innocence of the accused cannot be affected by its method of procurement, if the evidence offered is in itself germane and pertinent to the issue to be decided. (Emphasis supplied). As recently as Ford v. State, 184 Md.App. 535, 568 , 967 A.2d 210 (2009), Judge Salmon stated for this Court: The common law in Maryland is that this State does not recognize (in criminal cases) an exclusiona/ry rule when physical evidence is illegally seized by the police.

(Emphasis supplied). In Howell v. State, 60 Md.App. 463 , 468 n. 2, 483 A.2d 780 (1984), the Court of Special Appeals did not mince its words: Maryland, of course, has no exclusionary rule. Following the lead of Judge Cardozo in People v. Defore[, 242 N.Y. 13 , 150 N.E. 585 ] (1926), Maryland is one of the approximately thirty jurisdictions that affirmatively rejected the exclusionary rule. (Emphasis supplied).

The only exclusionary rule extant in Maryland is that of Mapp v. Ohio. In that regard, Fitzgerald v. State, 153 Md. App. 601 , 682 n. 4, 837 A.2d 989 (2003), aff'd, 384 Md. 484 , 864 A.2d 1006 (2004), observed: ¹⁴⁰ Maryland has no independent exclusionary rule for physical evidence. Maryland has always been among the overwhelming majority of American states that have, on balance, opted against an exclusionary rule for search and seizure violations. The only extant exclusionary rule that the appellant can call upon is that imposed upon Maryland in 1961 by Mapp v. Ohio.

Mapp’s exclusionary rule, of course, is available only for violations of the federal Fourth Amendment. (Emphasis supplied). See also State v. Savage, 170 Md.App. 149, 198-211 , 906 A.2d 1054 (2006); Sun Kin Chan v. State, 78 Md.App. 287, 294-95, 552 A.2d 1351 (1989); In re Special Investigation No. 228, 54 Md.App. 149 , 458 A.2d 820 (1953). And see Irma S. Raker, “Fourth Amendment and Independent State Grounds,” 77 Miss.

L.J. 401 , 408-11 (2007) (“[T]o-day, in Maryland, other than the federal exclusionary rule, the Court has not recognized an exclusionary rule for illegally seized evidence under Article 26.”)(emphasis supplied). The appellant, indeed, is not even urging an independent Maryland exclusionary rule upon us. He is simply taking such a rule for granted. It is not there.

G. Exclusionary Unavailability for Sub-Constitutional Violations The appellant is twice bereft. Even if, purely arguendo, Maryland were to adopt (while this case is still non-final) an independent exclusionary rule of its own, it is highly unlikely that it would reach down to any police infractions below the level of violating Article 26 of the Maryland Declaration of Rights. Even when a state has opted to adopt its own independent exclusionary rule, it is almost universally the case that exclusion is only for constitutional violations and not for breaches of the law only at a sub-constitutional level. Just as a statutory violation is sub-constitutional, so too is a violation of a court-promulgated rule of procedure.

A violation of Criminal Procedure Article, § 5-206 or a violation of Maryland Rules of Procedure 4-212 or 4-216.1 simply would not reach up to that level of minimum eligibility for even a ¹⁴¹ hypothetical Maryland exclusionary rule. For the appellant, there simply is no exclusionary relief, either in reality or in hypothesizing. The unavailability of an exclusionary rule at the sub-constitutional level is a completely natural and unremarkable phenomenon. As cases such as United States v. Calandra, 414 U.S. 388 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974); Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976); and United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), have made clear over the decades and as the more recent opinions in Hudson v. Michigan, 547 U.S. 586 , 126 S.Ct. 2159 , 165 L.Ed.2d 56 (2006) and Herring v. United States, 555 U.S. 135 , 129 S.Ct. 695 , 172 L.Ed.2d 496 (2009), have prominently highlighted, the Exclusionary Rule has never been looked upon as an unmixed blessing.

The Exclusionary Rule is a clumsy instrument, and the Supreme Court has consistently admonished us that society “pays a heavy price” in setting dangerous felons free when the excluded evidence would have proved them guilty of crime. The Rule’s highly selective application, therefore, has always required a delicate balancing between society’s interest and the interest of the defendant. The Supreme Court has steadfastly insisted that any application of the Rule must “pay its own way” in terms of grave and serious defense concerns. It is a jailhouse myth, therefore, that the law is eagerly awaiting the chance to apply the Rule to every minor impropriety or illegality.

In Maryland, the Exclusionary Rule applies only to violations of the federal Fourth Amendment and to nothing else. H. The “Good Faith” Defense Is Irrelevant Just as the narrow compass of the Exclusionary Rule makes the main thrust of the appellant’s attack irrelevant, it also makes the main thrust of the State’s counterattack equally irrelevant. The appellant’s first contention is that the confession in issue is the poisoned fruit of the appellant’s unlawful arrest. The heart of the State’s response is that, ¹⁴² regardless of whether the arrest was unlawful or not, the police did nothing unreasonable in serving the warrant and that this would, therefore, be a proper case to apply the good faith exception to the Exclusionary Rule.

The so-called “good faith doctrine” or “good faith exception” of United States v. Leon, supra, and Massachusetts v. Sheppard, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984), however, does not exist in a vacuum. It is an aspect of Fourth Amendment law and nothing beyond that. It is a part of the Fourth Amendment whole. It is an exception to the Exclusionary Rule.

Indeed, the animating rationale of the good faith exception is tied tightly to the Exclusionary Rule’s limited purpose of deterring unreasonable police conduct. If the Exclusionary Rule served a broader purpose, the good faith exception would make no sense. Because the Fourth Amendment and the Exclusionary Rule of Mapp v. Ohio do not apply to this case, therefore, neither does the good faith exception to that Exclusionary Rule. It is only in the universe of the Exclusionary Rule of Mapp that the “good faith doctrine” even exists.

Where the Rule does not apply, the exception to the Rule cannot apply. The “Fruit of the Poisonous Tree” Doctrine As we undertake a discussion of the “fruit of the poisonous tree” doctrine, our first challenge is somehow to classify it. It is illusive. It builds on existing exclusionary principles for two or three federal constitutional protections by announcing the logically unremarkable proposition that when violations of those protections produce evidence of crime, the available suppression remedies will extend not only to the direct or immediate products of the violation but to the indirect or derivative products as well.

It is because of the stretching out of the causal link between the cause and the effect that the “fruit of the poisonous tree” doctrine has been particularly susceptible to the defense of attenuation, as that concept has been thoroughly explicated in Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). ¹⁴³ The overwhelming majority of the cases excluding the “fruit of the poisonous tree” were triggered by Fourth Amendment violations. From the birth of the doctrine in 1920 through 1967, the Fourth Amendment was the only constitutional provision to serve as a trigger. As our survey will show, most of the cases applying the doctrine, federal and state, also referred to it as a Fourth Amendment doctrine. There is a massive overlap between exclusion pursuant to the “fruit of the poisonous tree” doctrine and exclusion pursuant to Mapp v. Ohio, but the two exclusions are, to be sure, not identical.

Where the two exclusions overlap, to wit, where the trigger is an alleged Fourth Amendment violation, Mapp v. Ohio controls the field and it is not necessary to discuss the exclusion in any other terms. In the present case, for instance, the appellant claims that an unlawful arrest calls for the suppression of his confession. In such a case, the failure of the appellant to qualify for exclusion pursuant to Mapp v. Ohio is, ipso facto, the failure to qualify for exclusion pursuant to the “fruit of the poisonous tree” doctrine. At its extreme outer edges, however, the “fruit of the poisonous tree” doctrine does cover some situations beyond the Fourth Amendment.

In United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), the poisonous tree was also a violation of the Sixth Amendment right to counsel and the tainted fruit was a line-up identification. In Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984), the poisonous tree was a violation of the Sixth Amendment right to counsel and the allegedly tainted fruit was the body of the murder victim. In Nix v. Williams, 467 U.S. at 442 , 104 S.Ct. 2501 , Chief Justice Burger discussed this wider coverage of the doctrine. Although Silverthome and Wong Sun involved violations of the Fourth Amendment, the “fruit of the poisonous tree” doctrine has not been limited to cases in which there has been a Fourth Amendment violation.

The Court has applied the doctrine where the violations were of the Sixth Amendment, see United States v. Wade, 388 U.S. 218 [ 87 ¹⁴⁴ S.Ct. 1926 , 18 L.Ed.2d 1149 ] (1967), as well as of the Fifth Amendment. (Emphasis supplied). Because so many of the cases applied, and still apply, the Fourth Amendment label to the doctrine, however, our discussion may on occasion lapse into that usage. In the case of this appellant, however, the choice of label will not make any difference because he alleges, as the trigger for exclusion, an unlawful arrest of his person and his possible recourse would be, of necessity, to Mapp v. Ohio.

Under either the narrower Fourth Amendment label or the more technically correct broader label (once one is generally agreed upon), one critical common denominator is clear. The only trigger for exclusion under the “fruit of the poisonous tree” doctrine is the violation of a federal constitutional right. 7 The doctrine was long regarded as a part of the Fourth Amendment. It was first recognized in Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920). After finding a Fourth Amendment violation, the Supreme Court carried the exclusionary sanction forward to the second generation of improper use, as it prohibited the indirect or derivative use of the evidence as well as its direct use.

In the words of Justice Holmes, “The essence of a ¹⁴⁵ provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” 251 U.S. at 392 , 40 S.Ct. 182 . It was on the second occasion of the doctrine’s use in Nardone v. United States, 308 U.S. 338, 341 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939), that Justice Frankfurter coined the vivid description of derivative evidence as the “fruit of the poisonous tree.” The phrase has had staying power. The doctrine reached full fruition in Wong Sun v. United States with the development of the notion of attenuation of taint as a reason not to exclude the derivative evidence. Wong Sun described the doctrine as an aspect of the Fourth Amendment and one that depended for its enforcement on the exclusionary power of the Fourth Amendment.

The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States [ 365 U.S. 505 , 81 S.Ct. 679 , 5 L.Ed.2d 734 (1961) ] that the Fourth Amendment may protect against the overhearing of verbal statements a well as against the more traditional seizure of “papers and effects.” ... Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the “fruit” of official illegality than the more common tangible fruits of the unwarranted intrusion. Nor do policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence.

(Emphasis supplied). Thus, confessions were covered as well as physical evidence. Both were excluded, because they were the fruits, direct or derivative, of a Fourth Amendment violation. It was only in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), that the “fruit of the poisonous tree” rationale was first applied to a state criminal trial.

The trigger in Brown was again a Fourth Amendment violation. ¹⁴⁶ It led to an oral statement that was properly Mirandized. Notwithstanding the fact that the Fifth Amendment had been fully satisfied by the Miranda warnings, it was the Fourth Amendment violation that called for the exclusion of the confession under the “fruit of the poisonous tree” doctrine. The exclusionary rule thus was applied in Wong Sun primarily to protect Fourth Amendment rights. Protection of the Fifth Amendment right against self-incrimination was not the Court’s paramount concern there----The Court in Wong Sun ... emphasized that application of the exclusionary rule ... protected Fourth Amendment guarantees. 422 U.S. at 599 , 95 S.Ct. 2254 (emphasis supplied).

The Supreme Court was outspoken that the exclusion of a confession under the “fruit of the poisonous tree” doctrine was an aspect of Fourth Amendment law following a Fourth Amendment violation. “The exclusionary rule, when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.” 422 U.S. at 601 , 95 S.Ct. 2254 . “Wong Sun thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment.” 422 U.S. at 602 , 95 S.Ct. 2254 . The first Maryland appellate decision to recognize Brown v. Illinois was that of this Court in Ryon v. State, 29 Md.App. 62 , 349 A.2d 393 (1975). Judge Orth’s opinion made it clear that it was Fourth Amendment law that was being applied: The Fourth Amendment exclusionary rule applies equally to statements and tangible evidence obtained following an illegal arrest or an otherwise illegal search and seizure. 29 Md.App. at 71 , 349 A.2d 393 (emphasis supplied). In a one-page per curiam decision in State v. Ryon, 278 Md. 302 , 363 A.2d 243 (1976), the Court of Appeals put its imprimatur on Judge Orth’s analysis.

See also Ferguson v. State, 301 Md. 542, 548 , 483 A.2d 1255 (1984) (“[TJhe Comi extended the exclusionary rule to evidence that was the indirect product or ‘fruit’ of police misconduct in violation of the fourth amend- ¹⁴⁷ -merit.” (Emphasis supplied)); Miles v. State, 365 Md. 488 , 781 A.2d 787 (2001). Our point is that the “fruit of the poisonous tree” doctrine was not considered to be an independent exclusionary principle but was simply an integral part of the Exclusionary Rule of Mapp v. Ohio, as it was extended to derivative evidence. The appellant seems to believe that there is some general exclusionary power inherent in the “fruit of the poisonous tree” doctrine that may apply even when the Exclusionary Rule of Mapp does not. If that were the case, it would be ironic in the extreme.

The topsy-turvy result would be that even where Mapp would not suppress the direct “fruits” or immediate results of an unreasonable search and seizure, this “other” exclusionary force would suppress the indirect “fruits” or merely derivative results of the impropriety. Such reasoning would be logically nonsensical. Most of the Supreme Court cases since Brown v. Illinois that have applied a “fruit of the poisonous tree” analysis have been cases that began with a clear Fourth Amendment violation. Davis v. Mississippi, 394 U.S. 721 , 89 S.Ct. 1394 , 22 L.Ed.2d 676 (1969) (fingerprint following an illegal seizure); Johnson v. Louisiana, 406 U.S. 356 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972) (line-up identification following illegal arrest); Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979) (confession after illegal arrest); United States v. Crews, 445 U.S. 463, 471 , 100 S.Ct. 1244 , 63 L.Ed.2d 537 (1980) (photographic identification following illegal arrest) (“In the typical ‘fruit of the poisonous tree’ case, the challenged evidence was acquired by the police after some initial Fourth Amendment violation.”); Taylor v. Alabama, 457 U.S. 687 , 102 S.Ct. 2664 , 73 L.Ed.2d 314 (1982) (confession following illegal arrest); Kaupp v. Texas, 538 U.S. 626 , 123 S.Ct. 1843 , 155 L.Ed.2d 814 (2003) (confession following illegal arrest).

More often than not, the alleged “fruit of the poisonous tree” is a confession. The leading academic authority on confession law in Maryland is Jezic, Molony, Nolan and Woodward, Maryland Law of Confessions (2012-13 edition). In ¹⁴⁸ Chapter 15, “Confessions Derived From Illegal Searches and Seizures,” § 15. 1, p. 733, that work identifies the “fruit of the poisonous tree” doctrine as an aspect of Fourth Amendment law. In determining the admissibility of a confession stemming from an illegal search or seizure, a Fourth Amendment “fruits” analysis must be undertaken.

As a result of an illegal search or seizure, a subsequent voluntary confession, although obtained in conformance with Miranda, may nonetheless be suppressed as the “fruit of the poisonous tree.” (Emphasis supplied). Because, as we have already discussed at great length, the Fourth Amendment is not involved in this case, neither is the “fruit of the poisonous tree” doctrine. As solid proof that Maryland does not have some independent exclusionary doctrine for fruits of improper search-and-seizure-related police procedures, we need look only to the survey of Maryland caselaw compiled by Judge Orth in Ryon v. State, supra, 29 Md.App. at 73 n. 13, 349 A.2d 393 . He there pointed out that the Court of Appeals, in 12 separate decisions, and the Court of Special Appeals, in 15 separate decisions, had consistently declined to exclude derivative evidence because they did not believe the federal practice in that regard, developed in Wong Sun , was binding upon Maryland. “The Court of Appeals of Maryland appeared to have disassociated itself promptly from Wong Sun .

In a long line of cases, starting with Prescoe v. State, 231 Md. 486 , 191 A.2d 226 (1963), decided 14 May 1963, a majority of the Court indicated that Wong Sun was not intended to, and did not, control prosecution in state courts.” Maryland began to exclude derivative evidence, such as confessions, only under the constitutional compulsion of Brown v. Illinois as of June 26, 1975. The “fruit of the poisonous tree” doctrine is a federal doctrine, not a state doctrine. The fatal flaw pervading this first subcontention is that while the appellant argues very persuasively in microcosm, he fails to give us a clue as to the macrocosm that is the necessary context for the microcosm. He may well have a ¹⁴⁹ legitimate grievance with respect to bail procedures that were not followed.

In terms of the remedy he seeks, however, his problem is that his complaint is not a federal complaint. Neither is it a Fourth Amendment complaint. Neither is it even a constitutional complaint. Microcosmically he may be in the right pew, but macrocosmically he is not in the right church.

The first subcontention fails. Edwards v. Arizona Inapplicable [A]n accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police. ... Edwards v. Arizona (1981) The appellant’s second subcontention threatened to lead us on a wild goose chase. The subject of possible suppression was the four-part interrogation of the appellant by Detective Corporal Robert Merritt on the early morning of May 6, 2011.

From the beginning of that interview at approximately 1:30 a.m. to its conclusion at approximately 4:00 a.m., Corporal Merritt, obviously anticipating a later courtroom examination, was obsessed with the question of who had initiated that early morning conversation. Throughout the interrogation, Corporal Merritt, with drumbeat repetition, kept trying to get the appellant to agree that it was the appellant himself who initially had wanted to talk to Corporal Merritt and not vice-versa. At 3:55 a.m., the coda to the interrogation resounded this early and persistently sounded leitmotif: MERRITT: And, you saw me, and you recognized me, correct? [THE APPELLANT]: Yes. MERRITT: And you asked, can we talk?

You wanted to talk to me, correct? [THE APPELLANT]: Yeah. ¹⁵⁰ MERRITT: So, and, and you kept asking me, I was going back and forth from my, from getting stuff out of my truck, ah, my, my police vehicle to the car, and talking to the other officers. And each time I came back, you were asking, hey, can we talk, correct? [THE APPELLANT]: Um hm (positive response) MERRITT: Is that correct? [THE APPELLANT]: Yeah. MERRITT: And you initiated contact with me about talking, correct? [THE APPELLANT]: Um hm (positive response) MERRITT: And you, ‘cau, because you wanted to talk to me, correct? [THE APPELLANT]: Yes. (Emphasis supplied).

At the suppression hearing on November 17, 2011, the appellant’s position was made very clear that the appellant had never indicated to Corporal Merritt that he wanted to talk about “the case,” to wit, about the attack on Terrell Swales on January 6, 2011, but only wanted to know why he was being arrested in the middle of the night at the northern pier of the Potomac River Bridge. Defense counsel cross-examined Corporal Merritt: [DEFENSE COUNSEL]: It’s true, is it not, that [the appellant] then asked you what was going on, did he not? [MERRITT]: I believe he did. [DEFENSE COUNSEL]: He asked you why he was being arrested, did he not? [MERRITT]: I don’t believe that was his words, no. [DEFENSE COUNSEL]: It’s true, is it not, that [the appellant] asked you several times what was going on? [MERRITT]: Yes. [DEFENSE COUNSEL]: And it’s true, is it not, that you asked [the appellant] several times whether or not he wanted to talk to you about what was going on? ¹⁵¹ [MERRITT]: When I first made contact with him, no. I don’t believe I asked him several times during the first contact if he wanted to talk to me. (Emphasis supplied).

Battle was joined and never let up as to whether the appellant wanted to talk about (or, actually, to hear about) 1) “what was going on” with his rearrest or 2) the alleged crime of January 6, 2011. The former, the appellant goes to lengths to point out, is not the latter. [DEFENSE COUNSEL]: It is true that at some point you did ask him whether he wanted to hear about what was going on? [MERRITT]: Yes. [DEFENSE COUNSEL]: Now it is true also, is it not, that he answered that he wanted to hear what was going on? [MERRITT]: Yes. [DEFENSE COUNSEL]: Did he not? [MERRITT]: Yes. [DEFENSE COUNSEL]: It’s also true, is it not, that he never said that he wanted to talk to you about what was going on? [MERRITT]: I asked him do you want to talk to me about what’s going on here. That’s a simple question. And he replied yeah.

(Emphasis supplied). The battle raged on, with Corporal Merritt remaining deliberately oblivious to the fact that there might be a difference between the question, “Did he want to talk to you?” and the question, “What did he want to talk to you about?” [DEFENSE COUNSEL]: It’s true, is it not, that immediately after saying yeah, he said, I can hear what’s going on. I don’t know what’s going on? [MERRITT]: Yes. [DEFENSE COUNSEL]: Is that true? [MERRITT]: Yes. ¹⁵² [DEFENSE COUNSEL]: Indicating that when he said yeah, he meant he could hear you, true? [MERRITT]: No, my interpretation of yeah is a common response to yes. [DEFENSE COUNSEL]: Well, it’s true, is it not, that you didn’t understand that at the time? [MERRITT]: I understand yeah to be yes. [DEFENSE COUNSEL]: But at the time you didn’t think he was saying that he wanted to talk to you, did you? [MERRITT]: No, I clearly understood that he wanted to talk to me. (Emphasis supplied).

This routine went on interminably, with the defense team and Corporal Merritt talking across each other and never meeting on common ground. To the appellant, the inquiry was one of “to talk about what.” Corporal Merritt stubbornly limited the inquiry to one of “to talk,” preferring to leave the object of the talk unidentified. If the appellant had wanted to talk about global warming, Corporal Merritt would have insisted that it was the appellant who reinitiated contact. In appellate brief, the appellant picked up on this theme of the verb’s not needing a predicate.

While the police may not re-initiate interrogation following a suspect’s invocation of his right to counsel, the rule is different if the suspect re-initiates conversation. Yet the re-initiation by a suspect must relate to the investigation. (Emphasis supplied). At the outset of our consideration of this subcontention, we used the phrase “wild goose chase.” We did so because, early on as we joined the appellant in the chase, we found ourselves teetering on the brink of an abyss.

We were about to fall into the esoteric welter of Oregon v. Bradshaw, 462 U.S. 1039 , 103 S.Ct. 2830 , 77 L.Ed.2d 405 (1983); Blake v. State, 381 Md. 218 , 849 A.2d 410 (2004); and Phillips v. State, 425 Md. 210 , 40 A.3d 25 (2012), as they anguished over the nuances of what words constitute a reinitiation of contact and what words do ¹⁵³ not. Arriving like the cavalry in the nick of time was the revelation, “Who cares?” One way or the other, it simply does not make any difference. The only corner of confession law that even cares about which party reinitiated contact lies in the shadowland of Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981). When Edwards is involved, we may readily have a reinitiation problem.

Conversely, when Edwards is not involved, the issue of reinitiation is irrelevant. Although the appellant devotes eight full pages of his brief to the argument of this subcontention, its gist is: Appellant was arrested and interrogated after he had turned himself in on a warrant, posted bail, invoked his right to counsel, and hired counsel, who had entered his appearance. The State might be tempted to claim that the Appellant re-initiated conversation, when Appellant, after his arrest, attempted to question the police as to why they had arrested him, since he was out on bail. Yet this did not constitute a re-initiation of the conversation about the crime in question.

(Emphasis supplied). The minor premise, that we may now mercifully avoid, is that Corporal Merritt reinitiated contact with the appellant. The major premise, which the appellant blithely takes for granted, is that Corporal Merritt was somehow prohibited by Edwards from reinitiating contact with the appellant. It is to that major premise, however, that we must direct our attention.

Our first step, as always, needs to be one of careful classification. What is the particular sub-category of confession law with which we need concern ourselves on this issue? With a tornado of precepts and principles and precedents swirling around outside, what are the few pertinent authorities that we need to take with us into our doctrinal cyclone cellar of the moment? In terms of identifying a proper categorizing label for the subcontention, what the appellant argues for would be, were he to prevail, a case of “Edwards v. Arizona Violated.” With our focus primarily on his flawed major premise, howev ¹⁵⁴ er, our conclusion is that the subcontention is, rather, a case of “Edwards v. Arizona Inapplicable.” Our subject is obviously Edwards v. Arizona.

Our questions will be 1) “What is Edwards v. Arizona? ” and 2) “When does Edwards v. Arizona apply?” That second question is in two sub-parts: 1) “When does it first apply?” and 2) “When does it stop applying?” What is Edwards v. Arizona? Notwithstanding the fact that it confers on certain subjects of interrogation a “right to counsel,” Edwards v. Arizona is not based on the Sixth Amendment’s right to the assistance of counsel. We may, therefore, conveniently brush all Sixth Amendment case law aside. Edwards v. Arizona arises out of the Fifth Amendment privilege against compelled self-incrimination.

In order to guard a suspect from the risk of compelled self-inerimination, the Supreme Court in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), devised a set of two prophylactic protections. They are 1) a right to silence and 2) a right to counsel for suspects being subjected to custodial interrogation. The rest of the now-famous Miranda catechism simply explains or elaborates on those two prophylactic rights. All of this Miranda “first level of prophylaxis” applies, moreover, only in the special circumstance of custodial interrogation, the critical circumstance which the Supreme Court deems to be inherently coercive or compelling.

Edwards v. Arizona (1981) was decided 15 years after Miranda. Edwards did not alter in any way Miranda's prophylactic right to counsel. What Edwards did to the Miranda-based right to counsel was to wrap around it a veritable bubble of impermeability to waiver. This is what some of the subsequent cases have called a “second layer of prophylaxis.” What Edwards held, 451 U.S. at 484-85 , 101 S.Ct. 1880 , was: [additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be estab ¹⁵⁵ lished by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.

We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. (Emphasis supplied). As Michigan v. Harvey, 494 U.S. 344, 350 , 110 S.Ct. 1176 , 108 L.Ed.2d 293 (1990), elaborated: Edwards thus established another prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. What this means for the appellant in this case is that if he once successfully invoked his Fifth Amendment-based prophylactic right to counsel, no ostensible waiver of that right by him would be deemed voluntary if the police initiated the renewed conversation between them.

If it were the appellant who initiated the recontact, on the other hand, that second layer of prophylaxis would dissolve and the waiver issue would be decided by routine Miranda rules as part of its first layer of prophylaxis. This anti-waiver rule of Edwards is why, in both the interrogation of May 6 and the suppression hearing of November 17, both parties were obsessed with the issue of whether it was the appellant or Corporal Merritt who initiated the conversation between them on May 6. They assumed that the answer to that question would determine whether Edwards v. Arizona had or had not been violated. They seemed to take the applicability of Edwards completely for granted.

They fought fiercely over the minor premise, while totally ignoring the major premise. They are battling over whether Edwards v. Arizona was violated without having established that Edwards v. Arizona even applied. It is the appellant’s assumption that he successfully invoked his Miranda-based right to counsel on February 23, 2011. The scenario on that day, however, is exceedingly murky. ¹⁵⁶ There was no testimony at the suppression hearing to establish the chronology of what happened on February 23.

In his Statement of Facts, the appellant simply tells us: Appellant posted a $10,000 bail, and was released. When interviewed by a Sheriff, he invoked his right to counsel and questioning ceased. Our problem is that, in terms of the appellant’s entitlement to the prophylactic right to counsel or to any of Miranda’s protections, that statement tells us nothing. The entire package of Miranda protections is confined to the special context of custodial interrogation.

It is custodial interrogation that is presumptively coercive and that thereby poses the threat of compelled self-incrimination that Miranda was devised to guard against. In McNeil v. Wisconsin, 501 U.S. 171 , 182 n. 3, 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991), the Supreme Court observed that because Miranda rights, including the Miranda-based right to counsel, control only the circumstance of custodial interrogation, they may only be invoked by one who is actually in custody at the time. They may not be invoked anticipatorily. We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation ” ...

If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. (Emphasis supplied). The United States Court of Appeals for the Seventh Circuit followed suit in United States v. LaGrone, 43 F.3d 332, 337-38 (7th Cir.1994): LaGrone could not have invoked his Miranda right to counsel at the time he asked to call his attorney concerning the consent to search.

At the time LaGrone asked to talk ¹⁵⁷ to his attorney, he was not in a custodial interrogation atmosphere. The Miranda right to counsel attaches only in the context of custodial interrogation. LaGrone apparently argues that once a defendant’s right to counsel under Miranda is triggered, it is like the Energizer Bunny—it keeps going, and going, and going.... While this is true of the Sixth Amendment right to counsel—once the government initiates formal charges against the defendant, he has a right to counsel at all future “critical stages,” we believe that there are certain “windows of opportunity” in which a defendant must assert his Miranda right to counsel.

A defendant must clearly invoke his right to counsel from each constitutional source, at a time when the right is available. See also United States v. Grimes, 142 F.3d 1342, 1347-48 (11th Cir.1998); Alston v. Redman, 34 F.3d 1237, 1246 (3d Cir.1994) (“The antipathy expressed in McNeil towards the anticipatory invocation of the Miranda rights is consistent with Miranda’s underlying principles.”); United States v. Thompson, 35 F.3d 100 (2d Cir.1994); United States v. Wright, 962 F.2d 953 (9th Cir.1992). In Marr v. State, 134 Md.App. 152, 173-78 , 759 A.2d 327 (2000), this Court made an extensive survey of this prohibition on the anticipatory invocation of the Miranda-based right to counsel before custody had attached, pointing out that five other state courts had joined five federal circuit courts in recognizing the prohibition on jumping the gun. The holding of this Court did not break ranks.

Even if appellant’s arguments discussed above had merit, we would hold that appellant did not validly invoke his Fifth Amendment right to counsel because the invocation by counsel occurred outside of the context of custodial interrogation. Miranda’s safeguards were intended to provide protection against the inherent coerciveness of custodial interrogation. ¹⁵⁸ 134 Md.App. at 173 , 759 A.2d 327 (emphasis supplied). Our opinion made it clear how intimately tied this right to counsel is with Miranda and with the Fifth Amendment privilege: Allowing an anticipatory invocation of the Miranda right to counsel on these facts would extend an accused’s privilege against compelled self incrimination beyond the intent of Miranda and its progeny.... Because appellant’s purported invocation, through his attorney, occurred before appellant was in custody, it could not operate to invoke his Fifth Amendment right to counsel. 134 Md.App. at 177-78 , 759 A.2d 327 (emphasis supplied).

See also Hoerauf v. State, 178 Md.App. 292, 316-18 , 941 A.2d 1161 (2008); Costley v. State, 175 Md.App. 90, 110-12 , 926 A.2d 769 (2007). And see Jezic, Maryland Law of Confessions, § 12.4 “Invocation effective only in context of custodial interrogation,” p. 611: “A suspect’s invocation of the Miranda right to counsel must be made in the context of custodial interrogation, or when custodial interrogation is imminent.” There is no evidence in this case that the appellant, back on February 23, ever invoked a right to counsel or ever even received Miranda warnings. There is certainly no indication that the appellant was ever placed in custody in order to be interrogated. All we have about the circumstances of February 23 is the following unilluminating snippet of testimony from the appellant: When I first turned myself in, the detective and another detective, they came all and got me and [I] told him, me and my mother told him that I had a lawyer and he said okay.

There is nothing to indicate that the prophylactic gears of Edwards v. Arizona, with its special protection against the reinitiation of contact by the police, were ever engaged. Our conclusion based on what we know is that the appellant, back on February 23, 2011, never acquired a Mirandob-Edwards right to counsel in the first place. Without the womb of custodial interrogation, there can never be a Miranda-based right to counsel. ¹⁵⁹ In defense counsel’s final argument at the suppression hearing, there was no mention of Edwards v. Arizona nor any suggestion that the appellant had ever requested that Mira/nda,-based prophylactic right to counsel in order not to be subjected to custodial interrogation. On this subcontention, counsel’s argument was limited to the following: So the officer knew or should have known that the defendant had counsel for the crime for the allegations for the case which he was investigating, the case for which the defendant was arrested and case about which he later interrogated the respondent.

So these are all things that the officer knew or should have known. When someone has counsel, police initiated interrogation is forbidden. (Emphasis supplied). Counsel was clearly attributing the special protection unique to the Fifth Amendment prophylactic right to the general Sixth Amendment right.

That graft, however, won’t take. This subcontention, moreover, is doubly troubled. It has viability problems at both ends of the Edwards v. Arizona life cycle. As the State quite astutely argues, even if, purely arguendo, the Fifth Amendment-based right to counsel had been invoked by the appellant pursuant to Miranda and Edwards , we would still have to look to the other end of its life cycle to see if it was still operational on May 6, 2011.

The Miranda-based right to counsel is designed to counter the special risks arising from custodial interrogation. Just as this prophylactic right to counsel does not begin, therefore, until custody begins, so too does it end when (or shortly after) custody ends. The case law refers to Edwards v. Arizona’s terminal problem as one brought on by a “break in custody.” The Alpha and Omega of “break-in-custody” law is Maryland v. Shatzer, 559 U.S. 98 , 130 S.Ct. 1213 , 175 L.Ed.2d 1045 (2010). The Shatzer opinion is, from start to finish, a further interpretation of one small part of Edwards v. Arizona.

It is a part of the Edwards doctrine which, in turn, is a part of the Miranda doctrine. It describes when and why the special protection of ¹⁶⁰ Edwards against involuntary waiver no longer has or needs to have any operational effect. Justice Scalia’s opinion in Shatzer described how Edwards v. Arizona’s second layer of prophylaxis is designed to counteract the coercive effects of custody: In Edwards , the Court determined that [Johnson v.] Zerbst’s [ 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) ] traditional standard for waiver was not sufficient to protect a suspect’s right to have counsel present at a subsequent interrogation if he had previously