In Re Special Investigation No. 185

Rodowsky, J., delivered the opinion of the Court. Md. Code (1957, 1982 Repl. Vol.), Art. 27, § 592A (a) provides that "[t]he State’s attorney may issue a summons for a witness for the purpose of obtaining evidence to prepare an information.” 1 In this case we shall hold § 592A does not authorize a summons in order to investigate whether or not a crime has occurred. Rather, the statute, at a minimum, requires that the State’s Attorney have probable cause to believe that a crime has taken place which he presently intends to charge by way of a criminal information.

The issue presented here is precipitated by a summons ⁶⁵⁴ duces tecum issued by the Attorney General, acting through an Assistant Attorney General assigned to the Medicaid Fraud Control Unit of the Attorney General’s Office. Pursuant to Md. Const., art. V, § 3, Acting Governor Blair Lee, III on December 20, 1978 and Governor Harry Hughes on November 21, 1979 had authorized and directed the Attorney General, "acting with full powers, rights and privileges possessed by a State’s Attorney, to investigate and, where appropriate, prosecute” violations of criminal laws arising out of, or relating to, the State’s Medicaid Program. The appellant in this case is a licensed optometrist.

On March 12, 1981 the Attorney General issued a summons duces tecum to the appellant, under the recited authority of § 592A, requiring the production of appellant’s records relating to 100 specifically named Medicaid patients. These records were produced. By a letter of April 9, 1981, which referred to the prior agreement of appellant’s counsel, the Attorney General requested records relating to 200 additional, specifically named, Medicaid patients. These records were furnished.

Then, by summons duces tecum of April 30,1981, the Attorney General directed the appellant to produce his records of 1733 additional, specifically named, Medicaid patients. Appellant moved to quash. A summons under § 592A is initially issued directly by a State’s Attorney and not by a court at the request of a State’s Attorney. Appellant’s motion to quash was filed in the Criminal Court of Baltimore and entered on the Miscellaneous Docket as a new filing.

In an opinion of July 24, 1981 the trial court distilled the positions taken before it by the parties. The State argued that "the very fact that the summons is issued by the Medicaid Fraud Control Unit ... on its face, demonstrates the reasonable relationship between the records sought and the investigation.” Appellant asserted, inter alia, that the summons should be quashed absent "any showing that the State has any reasonable or probable cause to believe that a criminal violation has occurred...” In the trial court’s view determination of the reasonable basis for a § 592A summons was to be guided by the standards for investigative sub ⁶⁵⁵ poenas issued by administrative agencies, which were enunciated in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208 , 66 S. Ct. 494, 505 , 90 L. Ed. 614, 629 (1946). This is a threefold test which this Court summarized in Banach v. State Commission on Human Relations, 277 Md. 502, 506 , 356 A.2d 242, 246 (1976) to be: "Whether the inquiry is authorized by statute, the information sought is relevant to the inquiry, and the demand is not too indefinite or overbroad.” The trial court ordered the State to submit "an affidavit making a minimal preliminary showing that the records sought. . . are relevant to an investigation being conducted by it and properly within its jurisdiction and are not sought primarily for another purpose.” The State filed such an affidavit. It recited the history of the creation of the Medicaid Fraud Control Unit.

It said the State had "received information” that the appellant "was engaged in defrauding the Medical Assistance Program ... by falsifying information on invoices submitted to the Medical Assistance Program ... in order to justify payment for services allegedly rendered.” The State’s affidavit stated that the appellant had been advised at the time of the March 13,1981 summons that he was the subject of an investigation and that appellant had "suggested that the investigation may have been prompted by former disgruntled employees whose names [appellant] provided at that time.” A comparison of the records produced by the appellant with those of the Department of Health and Mental Hygiene "indicated” to the State that "discrepancies of the types suggested by the employees did indeed exist.” The State’s affidavit concluded that the records sought "are relevant to the investigation now being conducted and that they are sought primarily for this purpose and none other.” On September 3, 1981 the trial court ordered "that the documents enumerated in the Summons Duces Tecum dated April 30, 1981 shall be produced forthwith.” Appellant appealed to the Court of Special Appeals. 2 We issued the writ ⁶⁵⁶ of certiorari on our own motion prior to consideration of the matter by the intermediate appellate court. The Oklahoma Press test for the validity of administrative investigative subpoenas rests in part on the Supreme Court having found a "proper analogy to . .. the grand jury investigation ....” Equitable Trust Co. v. State Commission on Human Relations, 287 Md. 80, 92 , 411 A.2d 86, 93 (1980) (referring to Oklahoma Press, supra, 327 U.S. at 209 , 66 S. Ct. at 505 , 90 L. Ed. at 630 ). Indeed, in this Court, the State flatly asserts that § 592A "when coupled with the present provisions of Article 27, § 592, 1 3 1 [was] intended to provide a means of investigating and charging suspects which paralleled the grand jury process.” We do not agree. ⁶⁵⁷ The circumstances under which a State’s Attorney may issue a summons under § 592A are found in the terms of the statute itself. The summons is authorized "for the purpose of obtaining evidence to prepare an information.” In order for § 592A to operate, the purpose of the State’s Attorney must be more specific than simply to obtain evidence.

He may summons for evidence only in order to prepare an information. The statute requires that there be a then present purpose to file an information, and that the object of the summons be evidence that the prosecutor anticipates will enable him to prepare that charging document. Thus, the analogy or parallel to a grand jury summons falls. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate ....

"It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by . . . forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States, 250 U.S. 273, 282 [ , 39 S. Ct. 468, 471 , 63 L. Ed. 979, 983 ] (1919). [United States v. Calandra, 414 U.S. 338, 343 , 94 S. Ct. 613, 617 , 38 L. Ed. 2d 561, 568-69 (1974).] And see Bartram v. State, 280 Md. 616, 630-31 , 374 A.2d 1144, 1151 (1977). The State’s reading of § 592A permits a purely investigatory use of the summons power. As the State would have it, the § 592A subpoena may be utilized whether or not the State’s Attorney possesses information sufficient to support a reasonable belief that an offense has been committed at all. That interpretation either reads out of the statute the words, "to prepare an information,” or adds, in effect, the words, "if facts might thereby be uncovered furnishing probable cause to believe a crime chargeable by information has been committed.” We recognize that § 592A addresses a time prior to the actual filing of an information.

We need not, in this case, ⁶⁵⁸ speculate on the various situations which might arise in which the State’s Attorney would possess sufficient knowledge in order to have a present purpose to file an information, but would desire additional evidence in order to prepare that charging document. We hold only that, in order to utilize § 592A, the State’s Attorney must have a then present purpose of filing an information based upon facts which, at a minimum, constitute probable cause to believe that an offense chargeable by information has occurred.* 123 4 The history of § 592A supports our conclusion. By Ch. 562 of the Acts of 1933, provision was made for a State’s Attorney to proceed by information in cases in which a person charged with a misdemeanor made known a desire to plead guilty. See Md. Code (1939), Art. 27, § 637.

This statute was substantially amended by Ch. 788 of the Acts of 1945. Under that enactment, a person charged with a misdemeanor or felony, who wished to waive his right to indictment by the grand jury and to seek an immediate trial by the petit jury, could file a petition and suggestion to that effect with the court. Upon that filing the State’s Attorney was required "forthwith” to file a criminal information against the accused. The procedure did not apply in Baltimore City or Baltimore County.

See Md. Code (1951), Art. 27, § 679. Its apparent purpose was to enable an accused to obtain a disposition of the charges against him more promptly than by waiting for grand jury indictment in those counties where a grand jury was convened only at particular times of the year to consider such matters as had accumulated since the last ⁶⁵⁹ sitting of a grand jury. In connection with this procedure the statute provided that the "State’s Attorney shall have the same power to summons witnesses to his office on a day certain for the purposes of obtaining evidence to prepare said Information as he now possesses to summons witnesses to appear before the grand jury.” Id. In the enlargement of Chapter 700 (Criminal Causes) of the Maryland Rules of Procedure proposed in the 20th Report of the Rules Committee, the 1945 enactment, which was then Code (1957), Art. 27, § 592, was used as the source for proposed new Rules 709 and 710.

These rules were adopted September 15, 1961, effective January 1, 1962. Md. Rule 710 provided: Summons for Witness in Aid of Information. The State’s attorney may issue a summons for a witness for the purpose of obtaining evidence to prepare an information. The State’s attorney shall report to the court a refusal by a witness to obey such summons and the court may issue a bench warrant for such witness.

Rules 709 5 and 710 were of statewide application. ⁶⁶⁰ Article 27, § 592 was repealed by Ch. 558 of the Acts of 1963, entitled an Act "to amend or repeal provisions of the Code ... inconsistent with or superseded by certain of the Maryland Rules of Procedure ... Rule 710, which had been in effect since January 1, 1962,'