In Re Montrail M.

BISHOP, Judge. This appeal involves two adjudicatory hearings in the Circuit Court for Kent County, sitting as the juvenile court. Each was based upon a separate incident. In the hearing on the first incident, appellant Montrail M. was found to have committed the delinquent act of driving without a license.

In the hearing on the second incident, appellants Montrail M., Harold S., Jr., and Matio C., as well as another juvenile who is not a party to this appeal, were each found to have committed a delinquent act by reason of possession ⁴²⁴ of cocaine and possession with intent to distribute. 1 At subsequent disposition hearings, Montrail M. and Harold S., Jr. were committed to the custody of the Department of Juvenile Services for placement in the Hickey School. Matio C. was committed to the custody of the Department of Juvenile Services for placement in Hurlock Home. The appellants bring this consolidated appeal. ISSUES A. Montrail M. contends that the juvenile court erred in the first adjudicatory hearing when it failed to ensure that he understood his “right to a contested proceeding” before it accepted his admission that he drove without a license.

B. All three appellants contend that in the second adjudicatory hearing: I. The juvenile court erred in failing to merge their “convictions” for possession of cocaine into their “convictions” for possession with intent to distribute, II. The juvenile court erred in denying their motions to suppress, and III. The juvenile court erred in admitting their out-of-court statements into evidence. An underlying question in all of these issues is: when should a juvenile, against whom a delinquency petition has been filed, be treated like a criminal defendant?

As we shall see, prior to a delinquency adjudication an accused juvenile is entitled to many, if not all, of the constitutional protections that are accorded a criminal defendant. See generally In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967). A delinquency adjudication is not a ⁴²⁵ criminal conviction, however, and a juvenile who has been adjudicated delinquent should not be considered or treated as a criminal. See In re Appeal Misc.

No. 32, 29 Md.App. 701, 703 , 351 A.2d 164 (1976). We find merit in Montrail M.’s argument as to the first adjudicatory hearing. We find no merit, however, in any of the arguments regarding the second adjudicatory hearing. A. Driving Without a License FACTS At the start of the first adjudicatory hearing, defense counsel stated that Montrail M. “admits to driving the car without a license, Your Honor.” The State’s attorney then recited a statement of facts, to which defense counsel acquiesced.

The statement indicated that a police officer, who knew Montrail M., caught the youngster driving through Chestertown in a borrowed car. At the time, Montrail M. was two months shy of his fifteenth birthday. After listening to the statement of facts, the court concluded: “Since there is an admission then, the court has no problem at all with finding that Mr. [M.] is, has violated the laws and has performed the acts as stated and as admitted, confessed.” Montrail M. argues in the appellants’ brief that he “was never informed that he had a right to a contested hearing, to call witnesses, to put the State to its proof, or to any related right of a criminal defendant____” DISCUSSION “[T]he constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults.” In re Gault, 387 U.S. at 55 , 87 S.Ct. at 1458 . To that end, Md.Rule 907b provides: If a respondent child has filed a pleading admitting the allegations of the juvenile petition or indicates to the court his intention not to deny those allegations, the ⁴²⁶ court, before proceeding with an adjudicatory hearing, shall advise the child of the nature and possible consequences of his action or intended action.

The court shall neither encourage [n]or discourage the child with respect to his action or intended action, but shall ascertain to its satisfaction that the child understands the nature and possible consequences of failing to deny the allegations of the juvenile petition, and that he takes that action knowingly and voluntarily. These proceedings shall take place in open court and shall be on the record____ (Emphasis added.) Despite the State’s protestations to the contrary, a plain reading of Rule 907b establishes that the rule is applicable whether or not the juvenile is represented by counsel. Compare Md.Rule 906b (establishing that the court must conduct a similar inquiry of a respondent who elects to waive representation by counsel, even before the respondent has indicated whether he will admit or deny the allegations in the petition). Rule 907b is the mere codification of the practice that prevailed even prior to the rule’s promulgation.

As this Court explained just prior to the adoption of Rule 907b in 1975: [I]f admissions by the juvenile by answer or in open court have, in fact, the effect of a guilty plea, we believe that the affirmative acceptance by the court should be required under the constitutional guidelines applicable to a plea of guilty in a criminal case. In other words, such admissions may be effectively accepted and considered by the court only under the standard applicable to a waiver of constitutional rights____ In re Appeal No. 544, 25 Md.App. 26, 42-43 , 332 A.2d 680 (1975) (where the accused juvenile was not represented by an attorney). It is beyond dispute that, regardless of whether a criminal defendant is represented by counsel, an inquiry must be conducted of him to ensure that his guilty plea is voluntary. See generally Md.Rule 4-242(c).

The juvenile court did not comply with Rule 907b. It accepted defense counsel’s word that Montrail M. admitted ⁴²⁷ that the allegation against him was true without inquiring of Montrail M. whether he understood the nature and the possible consequences of failing to deny the allegation, and whether his admission was knowing and voluntary. The finding that Montrail M. committed the delinquent act of driving without a license, therefore, must be reversed and remanded to the juvenile court for a new hearing. At the subsequent disposition hearing, the court considered the finding that Montrail M. had committed a deliquent act by driving without a license, as well as the findings, to be discussed infra, for controlled dangerous substance violations.

Because that disposition was based, in part, on the improper adjudication, that disposition as well must be vacated and remanded to the juvenile court for further proceedings. B. Controlled Dangerous Substance Violations FACTS At the second adjudicatory hearing, all three appellants, as well as a fourth juvenile who is not a party to this appeal, were found to have committed delinquent acts. That hearing was the result of an encounter that occurred between the youngsters and law enforcement officers during the early morning of May 12, 1990. Kent County Deputy Sheriff Glen Owens testified that at approximately 2:00 A.M., he heard a report over his radio of a suspected drunk driver in a “tan or brownish” station wagon.

About an hour later, an “earthtone” station wagon passed him going in the opposite direction. Deputy Owens suspected that the vehicle was the subject of the earlier radio report. He turned his car around in order to follow the station wagon but lost sight of it. The deputy explained that shortly thereafter he drove by a private business called “Chesapeake Diesel” and something caught his attention.

The building was located off the road in a secluded area and abutted a gravel lot. ⁴²⁸ Deputy Owens pulled into the lot and spotted the “earth-tone” station wagon parked next to the building, about 30 to 40 feet from the road, with its lights off. Deputy Owens observed that there were three persons in the vehicle and that “[t]here was a lot of movement inside the vehicle.” 2 The driver appeared to reach beneath his seat. The deputy checked the car’s license plate and ascertained that the vehicle was not the subject of the drunk driving report. Because the car was parked outside a private business in an isolated area at 3:30 in the morning, however, he remained suspicious and was concerned for his own safety.

He called for back-up, knowing that the only other unit on duty at the time was a canine unit. He then got out of his car and approached the station wagon. In the meantime, the driver of the station wagon, Matio C., had gotten out of the car and was looking under the hood. Deputy Owens explained that he spoke with Matio C. and determined that he did not appear to be under the influence of alcohol or any other substance.

The conversation did nothing, however, to allay the deputy’s suspicion that something was amiss. According to Deputy Owens, Matio C. told him that the brakes on his car had locked and that “he had to use his emergency brake to stop pulling into the parking lot.” Deputy Owens observed that the gravel in the lot was not “disturbed” in the way it would have been had the vehicle come to an “abrupt stop.” Matio C. indicated that something was wrong with a rear tire. Deputy Owens looked at the tire and noticed nothing out of the ordinary. Matio C. then informed the deputy that he was on his way to ⁴²⁹ Butlertown.

In the deputy’s view, Matio C. had chosen a roundabout route. Deputy Owens then asked to see Matio C.’s license and registration. He told the three juveniles to remain seated in the vehicle while he “checked out the situation and all.” He then ascertained that the station wagon was titled to Matio C. and his father jointly. As Deputy Owens was running a check on Matio C.’s documents, the canine unit arrived. 3 The deputy estimated that he had then been at the scene for approximately five minutes.

He testified that he requested that the dog “scan” the station wagon while the juveniles remained seated inside. Counsel for all three appellants moved to suppress any evidence regarding the scan and subsequent seizures of contraband from the car, arguing that both the initial detention of the juveniles and the canine’s scan were unjustified. 4 The motions were denied, and Deputy Sheriff Eonald Bakeoven, the canine handler, then testified that the dog walked around the vehicle and indicated, by sitting, that a controlled dangerous substance was present. Satisfied that the dog’s reaction amounted to probable cause to believe there were drugs in the vehicle, Deputy Bakeoven ordered the youngsters out of the car and searched the vehicle. See Malcolm v. State, 314 Md. 221, 226-27 , 550 A.2d 670 (1988) (because of the inherent mobility of a vehicle, a warrantless search is justified where there is probable cause to believe that the vehicle contains contraband).

He testified that he found a “small white plastic packet” behind the driver’s seat and a plastic bag containing suspected marijuana beneath the carpet by the car’s ⁴³⁰ brake. 5 Based on these discoveries, the occupants of the car were placed under arrest. 6 Deputy Bakeoven explained that the car was taken to the Sheriffs office, where a more thorough search was conducted. In addition to the substances already seized, nine vials of suspected crack cocaine were found. Subsequent testing established that the white plastic packet and the nine vials did indeed contain cocaine. A third deputy told the court that all three appellants, as well as the fourth juvenile who is not a party to this appeal, were informed of their rights and were questioned.

All four indicated that they had driven to Philadelphia on the preceding evening and had purchased drugs. The deputy was permitted to testify to the substance of the statements, over the appellants’ objections. None of the juveniles testified. DISCUSSION I. Merger The appellants argue that the juvenile court’s findings that each of them possessed cocaine should have been merged, for purposes of their dispositions, into its findings that they possessed cocaine with intent to distribute.

See Hawkins v. State, 77 Md.App. 338, 348-49 , 550 A.2d 416 (1988). This argument is without merit. “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions,” convictions based on those two provisions will be merged in order to ⁴³¹ prevent dual punishment. 7 Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932) (emphasis omitted). See also Newton v. State, 280 Md. 260, 273-74 , 373 A.2d 262 (1977). We note that there is no indication that the juvenile court in the case before us imposed separate dispositions for possession and possession with intent to distribute.

More significantly, the concept of merger is inapposite to the proper application of Maryland’s Juvenile Causes Act. See Md.Cts. & Jud.Proc.Code Ann. §§ 3-801 — 3-806. The Juvenile Causes Act is designed, in part, (1) To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest; (2) To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior____ Id., § 3-802. As this Court has explained, “[t]he dispositions of the juvenile court are not to be considered as punishments for a crime nor are adjudications of delinquency ‘convictions,’ as that word is generally applied with respect to criminal proceedings.” In re Appeal Misc.

No. 32, 29 Md.App. at 704 , 351 A.2d 164 . “[T]he proceedings of a juvenile court are not criminal in nature and its dispositions are not punishment for crime ...; ... the juvenile law has as its underlying concept the protection of the juvenile, so that judges, in making dispositions in juvenile cases, think not in terms of guilt, but of the child’s need for protection or rehabilitation.... ” Matter of Davis, 17 Md. ⁴³² App. 98, 103, 299 A.2d 856 (1973) (citations omitted). See also Md.Cts. & Jud.Proc.Code Ann. § 3-820(b) (providing that “[t]he priorities in making a disposition are the public safety and a program of treatment, training, and rehabilitation best suited to the physical, mental, and moral welfare of the child consistent with the public interest”). The dispositions in the case sub judice are simply not separate punishments for the same act. In committing the appellants to the custody of the Department of Juvenile Services, the juvenile court acted in accordance with the Juvenile Causes Act.

It determined how best to meet the child’s need for protection or rehabilitation and to protect the public interest by properly considering the serious nature of the delinquent acts, the family lives and academic backgrounds of the appellants, and the evaluations and