Martin v. State

MOYLAN, Judge. On December 4, 1995, Thomas A. Martin, the appellant, was tried before Judge James B. Dudley, sitting without a jury, in the Circuit Court for Howard County. The appellant was found guilty of committing a second-degree sexual offense, a third-degree sexual offense, and a fourth-degree sexual offense, as well as committing an assault and batteiy. The trial court sentenced the appellant to three separate four-year terms of incarceration for the second-degree offense, third-degree sexual offense, and the battery charges, and to a one-year sentence for the fourth-degree sexual offense.

The trial court ordered that all the sentences be served concurrently. On appeal, the appellant raises the following issues: 1. Did the trial court commit error in allowing the State to introduce statements made by the appellant during the course of an interrogation? 2. Did the trial court err in ruling that appellant had no standing to contest the search of his police vehicle? ¹⁹⁷ 3.

Did the trial court err in finding the evidence sufficient to sustain the appellant’s conviction for committing a second-degree sexual offense? 4. Did the trial court err by convicting the appellant based on jurisdiction conferred by Article 27, Section 590? 5. Did the trial court err by improperly drawing an adverse inference from the appellant’s decision not to testify at trial? Factual Background On August 2, 1995, M.N. attended an Allman Brothers Concert at the Meriweather Post Pavilion in Columbia.

During the evening, M.N. consumed large quantities of alcohol and inhaled nitrous oxide, an intoxicating substance, that was being sold at the concert in balloons. Near the conclusion of the concert, M.N. and her male companion went to separate rest rooms. After vomiting for a significant length of time, M.N. left the rest room only to find that her friend was gone. After resting in a nearby wooded area, M.N. began walking away from the concert, unsure of precisely where she was headed.

In the process of stumbling through a wooded area, M.N. somehow lost both of her shoes. Eventually, she made her way onto the median strip of Little Patuxent Parkway and began walking in the general direction of her residence in Montgomery County. Thomas M. Martin, the appellant, who was then serving as a sergeant in the Howard County Police Department, was on duty that night. At approximately 2:30 A.M., the appellant observed M.N. on Little Patuxent Parkway, made a U-turn, and pulled along side of her.

The appellant noticed that she appeared disheveled, that she was staggering and barefoot, and that she had the general appearance of being intoxicated. M.N., after seeing the patrol car turn around, believed that she might be in trouble because she was “drunk.” The appellant, however, simply asked her where she was going and asked if he could give her a ride. M.N. gladly accepted the ride and sat down in the front passenger seat of the police car. At that point, M.N. felt relieved because she thought she ¹⁹⁸ would be taken home.

The appellant did not threaten to arrest her or force her into the police car; he did not display a weapon or refer to it in any way. According to M:N., the appellant was polite and friendly. From that point on, M.N.’s and the appellant’s versions of events differ greatly. M.N. testified that after she had entered the patrol car, she engaged the appellant in friendly conversation.

Shortly thereafter, she leaned her head back and fell asleep. She later awoke when the police car came to a stop and she found herself in an unfamiliar “dark area.” M.N. could see trees and a small building, and she observed that there were no people in the area. 1 The appellant, to M.N.’s shock, suddenly began to touch her leg, while commenting that she had nice legs. She remained completely silent and motionless in an effort to convince the appellant that she was still asleep. M.N.’s hope was that the appellant would stop of his own accord.

The appellant, however, did not stop. He moved his hands underneath her shorts and began fondling her vagina. The. appellant then repeatedly placed his fingers inside M.N.’s vagina, occasionally stopping to ask her if she wanted to go home. M.N. did not physically resist or tell him to stop because she believed that the appellant would hurt her, or even kill her, to prevent her from reporting what was taking place.

The appellant was not only physically “bigger” than M.N., but she believed that he, by virtue of being a police officer, was armed with a handgun. The appellant then took out a mini-flashlight, moved M.N.’s shorts out of the way, and shined the flashlight in between her legs. Eventually, the appellant inserted the mini-flashlight into her vagina, moved the flashlight back and forth, and then placed the flashlight in his own mouth. M.N. was gripped with fear and continued to feign sleep.

She did, however, keep her eyes partially open in order to see what the appellant was doing. After a period of time, the appellant got out of the patrol vehicle and walked around to the passenger’s side. The ¹⁹⁹ appellant reclined M.N.’s seat and took her left leg and placed it on the dashboard so that her legs were spread apart. After positioning M.N., he again placed the flashlight inside her vagina.

The appellant also fondled other parts of her body, including her breasts. Throughout the process, the appellant continued to make sexually explicit comments to M.N. concerning her state of arousal. At one point, the appellant walked away from the patrol vehicle. When asked why she did not attempt to run at that point, M.N. responded, “Well, I remember specifically imagining myself running from the car and I imagined getting shot in the back because I knew he had a gun.” The appellant then returned to the patrol vehicle and drove off.

M.N. continued to feign sleep and she noticed that they eventually stopped at another dark location. M.N. was still in a reclining position when the appellant proceeded to fondle her vagina again. The appellant, after finally stopping his sexual conduct, began shaking M.N. and yelling her name. M.N. pretended to wake up because she “didn’t want anything worse to happen than had already happened.” She looked at the digital clock in the vehicle and observed that it was 4:48 A.M., which was over two hours after she had first been picked up by the appellant.

M.N. commented to the appellant that it was late and that she had better get home. The appellant responded by telling her that she had passed out and that he merely let her sleep while he answered a couple of police calls. The appellant even stated, “I thought about taking you back to my apartment and letting you sleep there but I thought you might be a little scared when you woke up.” The appellant, after noting that they were near the Howard County and Montgomery County line, finally proceeded to drive her home. After arriving at her home at approximately 5:20 A.M., M.N. asked the appellant his name so that she would know who had sexually assaulted her, and he gave her his business card.

M.N. entered the house, went to the bathroom, and then immediately dialed 9-1-1 in an effort to report the incident. M.N. told her mother that she had been molested by a police ²⁰⁰ officer, and then began to take notes for the purpose of capturing all of the details while they were still fresh in her memory. Throughout the entire ordeal, M.N. conceded that the appellant never brandished his weapon, struck her, physically held her down, or made any other forceful moves. M.N. noted, however, that she had construed his touching her as a threat.

The appellant did not testify at his trial. He gave a very conflicting version of that evening’s events, however, while being interrogated by a member of the Howard County Police Department. The appellant there stated that when he picked up M.N., she appeared intoxicated. He informed M.N. that he could give her a ride to the Montgomery County line and that arrangements could then be made for someone from that county to come and get her and take her home.

The appellant stated that, while driving toward the Montgomery County line, he learned from M.N. where she lived. The appellant claimed that at some point between the Little Patuxent Parkway and the Montgomery County fine, M.N. passed out. After arriving at the Burtonsville Shopping Center, the appellant reported to the police department that he had “dropped off the female passenger.” The appellant conceded that that was not true. During .the interrogation, he admitted to having had M.N. in his vehicle for approximately forty-five minutes beyond the time he had reported dropping her off.

He claimed that he did so simply to let her sleep. The appellant further stated that, while parked, he was in the middle of the parking lot and that even though no businesses were open, the parking lot was lighted. The appellant acknowledged that he never called the Montgomery County Police or anyone else to meet him and that no other individuals were on the parking lot at that time. The appellant firmly maintained, however, that there had been no physical contact between him and M.N. except for his periodic shaking of her in order to wake her up.

He further stated that after the approximately 45-minute period when he let her sleep, he proceeded to drive her immediately to her ²⁰¹ residence. He claimed to have dropped her off a block from her house at approximately 3:30 A.M., which was over two hours earlier than the time when M.N. stated she had been dropped off. The Admissibility of the Appellant’s Statement The contention the appellant urges most forcefully upon us is that Judge Dudley erroneously admitted in evidence the statement made by the appellant to Lieutenant John T. Schlossnagle, the Commander of the Criminal Investigations Division of the Howard County Police Department. Initially, one might wonder why the appellant would wish to object to the statement, in that it was almost totally exculpatory, admitting little or nothing that could plausibly be denied, and in that it was, moreover, the only vehicle through which the appellant got his version of events before Judge Dudley.

Indeed, the statement may have been better than the appellant’s live testimony would have been, shielded as it was from cross-examination. Whether the statement was tactically advantageous to the appellant or not, however, is, of course, beside the point. An opportunity to establish reversible error is its own raison d’etre, and the appellant is entitled to pursue such an opportunity. The appellant argues that his statement should have been suppressed.

That initially appeared to be a single blanket contention. As we sought to get a handle on it, however, it turned out to be exasperatingly slippery. Every time we thought we had it pinned down for analysis, it slipped from our grasp and appeared elsewhere in slightly altered form. It behooves us, therefore, to clear up the muddled nature of the question before we even try to answer it.

When the light dawned, we realized that the appellant, without ever expressly saying it and perhaps without even consciously realizing it, was urging upon us not one exclusionary rule but two, a familiar constitutional one and a far less familiar statutory one. The problem was that his argument wandered confusingly back and forth across the line between ²⁰² two exclusionary principles that focus on different problems and are implemented in different ways. The argument inadvertently sought to mix two distinct exclusionary approaches that do not mix. We must at the outset, therefore, isolate two very dissimilar subcontentions and then analyze each in its appropriate doctrinal vacuum.

There is first the familiar exclusionary rule, based on both the federal and the Maryland constitutions and insisting on traditional voluntariness. The focus of that exclusionary principle is on the subjective state of mind of the person giving an incriminating statement. The objective actions of the interrogators, no matter how reprehensible, do not per se trigger exclusion. They have significance only to the extent to which they actually produce a causative or catalytic impact upon the person being interrogated, compelling him to be a witness against himself.

The ultimate concern is with the volition of the person being interrogated, not the conduct of the interrogator. For convenience of reference, we will call this the constitutional exclusionary rule. The appellant has also invoked, indirectly if not directly, a less familiar statutory exclusionary rule, based on the Law Enforcement Officers’ Bill of Rights (hereinafter “LEOBOR”), which is found at Md.Ann.Code, art. 27 §§ 727 through 734D. It deals, under certain specifically designated circumstances, with an interrogation of a police officer by another police officer.

The focus of its exclusionary principle, by way of contrast with the constitutional exclusionary rule, is on the objective conduct of the officer conducting the interrogation. If the interrogator does certain things, the exclusion of any ensuing statement will automatically be triggered as a rule of law. The subjective impact upon the person being interrogated has nothing to do with it. Like the exclusionary rule for a Fourth Amendment violation, this is a prophylactic rule focusing on police conduct per se.

The ultimate concern is with the objective conduct of the interrogating officer, not the subjective impact of that conduct on the will of the person being interrogated. For convenience of reference, we will call this the statutory exclusionary rule. ²⁰³ Because this LEOBOR-based statutory exclusionary rule is less familiar than the constitutional exclusionary rule, it will be helpful to have it before us as we discuss the circumstances of the appellant’s interrogation. The LEOBOR provides, in pertinent part: This subtitle does not prevent any law enforcement agency from requiring a law enforcement officer under investigation to submit to ... interrogations which specifically relate to the subject matter of the investigation. This subtitle does not prevent a law enforcement agency from commencing any action which may lead to a punitive measure as a result of a law enforcement officer’s refusal to submit to ... interrogation, after having been ordered to do so by the law enforcement agency.

The results of any ... interrogation, as may be required by the law enforcement agency under this subparagraph are not admissible ... in any criminal proceedings against the law enforcement officer when the law enforcement officer has been ordered to submit thereto. (Emphasis supplied). Md.Ann.Code art. 27, § 728(b)(7)(ii) (1996). A. The Circumstances of the Interrogation On August 3,1995, at approximately 6:30 A.M., shortly after M.N. had been returned to her home, Lieutenant John T. Schlossnagle, the Commander of the Criminal Investigations Division of the Howard County Police Department, was informed of the sexual assault complaint made by M.N. against the appellant.

Lieutenant Schlossnagle drove to the Southern District, where the appellant and his police vehicle were located at the time. Upon arriving at the Southern District, Lieutenant Schlossnagle observed the appellant sitting in the Watch Commander’s office. Lieutenant Schlossnagle informed the appellant that he was conducting an official criminal investigation based on a sexual assault allegation made by a female. Lieutenant Schlossnagle asked the appellant if he had any objection to giving a statement, and the appellant replied either “sure” or “no problem.” In either event, ac ²⁰⁴ cording to Lieutenant Schlossnagle, the appellant “readily agreed without hesitation” to answer questions.

The interrogation took place at approximately 8:45 A.M., which was only several hours after the incident was alleged to have occurred. The interrogation was conducted exclusively by Lieutenant Schlossnagle, and the entire conversation was tape-recorded. At the suppression hearing, Judge Dudley was provided with a transcribed version of the interrogation. The transcript reveals that the appellant, from the very outset, was not only willing to give a statement, but also was very knowledgeable about his right to refuse to answer any questions.

Lieutenant Schlossnagle: Tom, we’ve had just a very brief conversation____ we haven’t had any conversation. I want to clarify that. You were in Lt. McKeldin’s office at Southern District.

In the Watch Commander’s Office, talking to Lt. McKeldin, I came down.... and clarify me if this is not accurate. I came down with Sgt. D’Antuono, I informed you that there’s been an allegation against you in a criminal matter involving sexual misconduct in a police car which occurred last evening or earlier this morning.

I informed you that we were doing an official criminal investigation. And I informed you that your option is.... either you could voluntarily give us a statement and answer some questions right now, or you can refuse to answer any questions at this point. And you indicated you were willing to talk. Is that correct.

Sgt. Martin: Yes sir. Lieutenant Schlossnagle: This interview is being tape recorded. Under Maryland Law Enforcement Officer’s Bill of Rights, you are entitled to certain things.

I have to notify you of an official investigation and I have to give you your Law Enforcement Officers Rights in which you know as a supervisor, you’ve had this training, and you also investigate other officers. So you know that it’s a required.... ²⁰⁵ Sgt. Martin: Yes Sir. Lieutenant Schlossnagle: .... it is not to be inferred that you have done anything wrong.

But it’s required by State law. Anytime we interview a police officer where he could be subject to criminal penalties or termination.... Sgt. Martin: Sir, I’m aware of that.

Lieutenant Schlossnagle, in an effort to comply with the requirements of Article 27, § 728(b), then provided the appellant with a Notice of Investigation that informed the appellant that he was being investigated regarding allegations that he had sexually assaulted a female while on duty. The appellant was also informed that Lieutenant Schlossnagle was in charge of the investigation, and that he was the only one who would ask the appellant questions. The conversation between Lieutenant Schlossnagle and the appellant continued: Lieutenant Schlossnagle: Now the other form I have here Tom, is an explanation of the Officer’s Bill of Rights. I can either read these to you verbatim or you can waive the reading of the rights.

And basically, your Miranda Rights or not Miranda Rights, but L.E.O.B.R. says such things as: The interview has to be conducted while on duty; It has to be conducted either at your assigned duty station or at the Headquarters Unit; The interview has to be tape recorded; It says you are entitled to have an attorney present, things of that nature. So, I’m prepared to read these to you unless you decide you’d like to... .you are going to.... Sgt. Martin: No. I’ll waive ’em.

I’ve read ’em my self enough. Lieutenant Schlossnagle: Okay. ²⁰⁶ Sgt. Martin: I don’t know them by heart, but I know ’em. The appellant was given Howard Comity Police Department Form 1727, which is designed to outline the various rights and responsibilities the appellant has, pursuant to the LEOBOR, when being investigated by a law enforcement agency for any reason that could lead to disciplinary action.

Section 7.a. of this form states that law enforcement agencies may require an officer under investigation to submit to interrogations specifically related to the subject matter of the investigation. Section 7.b. states that failure to submit to these interrogations may result in the commencement on the part of the law-enforcement agency of action that may lead to punitive measures. Finally, section 7.c. explained that the results of any interrogation of a law enforcement officer, when that officer has been ordered to submit thereto, are not admissible in any criminal proceeding against the law-enforcement officer. Lieutenant Schlossnagle then turned his attention to giving to the appellant a Miranda advisement.

Lieutenant Schlossnagle: Okay, Tom, the other requirement by law is that any time an officer is under interrogation for a criminal matter, I have to give you your.... also your Miranda Rights. Even though you’re----you are not in custody, and I want to make this clear, this is a voluntary interview. Sgt. Martin: I understand.

After questioning the appellant as to his sobriety and educational background, Lieutenant Schlossnagle informed the appellant of his right to remain silent, that anything he said might be used against him in court, that he had a right to a lawyer before and during questioning, and that a lawyer would be appointed for him if he could not afford one. The appellant stated that he fully understood those rights, and the following then took place: Lieutenant Schlossnagle: ²⁰⁷ And having been advised of your rights, are go'll willing to answer questions ? Sgt. Martin: Yes I am.

After briefly leaving the room to talk to another officer, Lieutenant Schlossnagle returned and once again ensured that the advisement was proper: Lieutenant Schlossnagle: Tom, I just want to make sure you understand your rights. The interrogations are supposed to be conducted while you on duty. And you are not on duty. You got off duty at 8:30 and you are voluntarily waiving that right in staying here of your own free will.

Is that correct ? Sgt. Martin: Correct. Yes.

Lieutenant Schlossnagle: Okay. And you’re waiving the right to having an attorney or any consultations "with an attorney. Is that correct? Sgt.

Martin: Yes. The appellant then proceeded to answer all of the questions posed by Lieutenant Schlossnagle.

II

Miranda v. Arizona: A Non-Issue The appellant, with good reason, does not allege any failure of compliance .with the provisions of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Although the Miranda advisements and warnings were gratuitously given to the appellant, they were not necessary. The Miranda requirements must be satisfied only in the circumstance of custodial interrogation. Although the appellant’s statement was unquestionably in response to interrogation, the appellant was not in custody.

Miranda was, therefore, inapplicable. Beckwith v. United States, 425 U.S. 341 , 96 S.Ct. 1612 , 48 L.Ed.2d 1 (1976); Oregon v. Mathiason, 429 ²⁰⁸ U.S. 492, 97 S.Ct. 711 , 50 L.Ed.2d 714 (1977); Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). C. Admissibility Under the LEOBOR The LEOBOR, enacted by the Legislature in 1974, is designed primarily to guarantee substantive and procedural protection to law enforcement officers during disciplinary investigations, interrogations, and hearings. Abbott v. Administrative Hearing Bd., 33 Md.App. 681, 682 , 366 A.2d 756 , cert. denied, 280 Md. 727 (1977).

This is because “the nature and duties of police officers is different from that of other public employees.” Canceloise v. City of Greenbelt, 75 Md.App. 662, 666 , 542 A.2d 1288 (1988). Indeed, “[i]n enacting the LEO-BOR, the Legislature vested in law-enforcement officers certain ‘rights’ not available to the general public.” Nichols v. Baltimore Police Dep’t, 53 Md.App. 623, 627 , 455 A.2d 446 , cert. denied, 296 Md. 111 (1983). The appellant invokes only the exclusionary principle of § 728(b)(7)(h). He does not contend that any other aspect of the LEOBOR was not complied with.

The exclusionary rule, already quoted more fully above, when reduced to its essentials, provides: The results of any ... interrogation, as may be required by the law enforcement agency under this subparagraph are not admissible ... in any criminal proceedings against the law enforcement officer when the law enforcement officer has been ordered to submit thereto. (Emphasis supplied). The objective fact that must be established before this prophylactic exclusionary rule is triggered is that the interrogating officer ordered the appellant to respond to the interrogation. Peripheral psychological pressures do not suffice.

The subjective state of mind of the appellant is immaterial. As an historical fact, Lieutenant Schlossnagle either ordered the appellant to respond to interrogation or he did not. We agree with Judge Dudley that there was absolutely no evidence that the appellant was ordered to submit to the interrogation by the Howard County Police Department. In ²⁰⁹ fact, the overwhelming evidence supports his finding to the contrary.

Lieutenant Schlossnagle testified that the appellant was never threatened with a transfer, dismissal, demotion, or any other type of disciplinary action for failing to give a statement. The appellant was free to leave, but he voluntarily chose to stay and give his version of events. At the outset of the interrogation, Lieutenant Schlossnagle explicitly advised the appellant: I informed you that your option is.... either you could voluntarily give us a statement and answer some questions right now, or you can refuse to answer any questions at this point. That, most definitely, was not an order.

The critical difference between a request and an order is a familiar distinction to anyone, such as the appellant here, in a paramilitary chain of command. Forced compliance with a direct order has attendant consequences that merely acceding to a request does not. A familiar question by one in the ranks is, “Am I being ordered to do so?” The appellant had even agreed to give a statement before being advised of his LEOBOR responsibilities. Indeed, the appellant conceded at the pretrial suppression hearing that in fact he had never been ordered to give a statement.

We hold that the statutory exclusionary rule established by the LEO-BOR did not come into play. D. Constitutional Admissibility and Traditional Voluntariness The appellant also contends that notwithstanding the inapplicability of any Miranda requirements, his statement should have been suppressed because it failed the traditional voluntariness test and thereby violated his Fifth Amendment privilege against compelled self-incrimination, made applicable to the states through the Fourteenth Amendment’s Due Process Clause. The test of voluntariness was well expressed by Arizona v. Fulminante, 499 U.S. 279, 303 , 111 S.Ct. 1246, 1261 , 113 L.Ed.2d 302, 327 (1991), quoting Culombe v. Con ²¹⁰ necticut, 367 U.S. 568, 602 , 81 S.Ct. 1860, 1879 , 6 L.Ed.2d 1037 (1961): “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker?

If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Looking at the totality of the circumstances, Judge Dudley concluded that the appellant’s will was not overborne and that his capacity for self-determination was not critically impaired. As part of our own independent, reflective determination of the ultimate conclusory fact, we similarly conclude that the appellant’s statement did not fail the traditional voluntariness test. We agree in this regard with the specific finding made by Judge Dudley: The question is, as a matter of fact, does the Court find that the statement made by Sgt.

Martin was freely, voluntarily made with full knowledge of his legal rights by virtue of Miranda and his legal rights by virtue of the Law Enforcement Officer’s Bill of Rights. And in listening to the tape and the manner in which he answered the questions, and in view of the [questions] which were posed and his responses to the questions, the Court has no doubt that Officer Martin was thoroughly familiar with all the rights and gave his statement freely and voluntarily. Just as the appellant sought (unsuccessfully) to invoke the allegedly intimidating nature of being interrogated by an occupational supervisor to trigger the LEOBOR-based exclusionary rule of § 728(b)(7)(A), he also seeks to invoke the allegedly intimidating nature of such an interrogation to trigger suppression on the ground that any statement under such circumstances is involuntary. Recognizing the essential futility of attacking Judge Dudley’s ruAng on voluntariness on its general merits, the appellant seeks to avoid the general merits ²¹¹ by invoking Garrity v. New Jersey, 385 U.S. 493 , 87 S.Ct. 616 , 17 L.Ed.2d 562 (1967) and Holloway v. State, 26 Md.App. 382 , 339 A.2d 319 (1975).

He cites those two cases as ostensible support for the proposition that certain occupational threats made by superior officers to a policeman will trigger a per se and prophylactic rule of exclusion that will automatically “trump” the general test of voluntariness. The appellant testified at the pretrial suppression hearing that because of the advisement given him with respect to his LEOBOR rights and responsibilities, he gave a statement because he feared that he would be dismissed from employment if he refused to talk. He argues that Garrity and Holloway dictate that a statement given under such circumstances must be treated as involuntary as a matter of law. We hold that the appellant’s reliance on Garrity and Holloway is misplaced for several independent reasons, any one of which would defeat his claim that his statement should have been suppressed. 1.

The Factual Analogy Is Not Present Even assuming that the suppression of a challenged statement pursuant to Garrity or Holloway would function in the automatic way suggested by the appellant (we hold, infra, that it does not), the appellant here would fail to qualify for such automatic exclusion on factual grounds. The suspects in both the Garrity and the Holloway cases were expressly threatened with the loss of employment if they failed to give statements; the appellant here was not. In Garrity v. New Jersey, a number of police officers were being investigated for “fixing” traffic tickets. Prior to being questioned, each officer “was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from, office.” (Emphasis supplied). 385 U.S. at 494 , 87 S.Ct. at 617 .

The police officers, therefore, were confronted with the stark ²¹² choice of incriminating themselves or losing their jobs. 385 U.S. at 496 , 87 S.Ct. at 618 . The question before the Supreme Court was whether being placed on the horns of such a dilemma deprived the officers of their “ ‘free choice to admit, to deny, or to refuse to answer.’ ” 385 U.S. at 496 , 87 S.Ct. at 618 (quoting Lisenba v. California, 314 U.S. 219, 241 , 62 S.Ct. 280, 292 , 86 L.Ed. 166 (1941)). The Supreme Court held that the police officers could not be held to have given voluntary statements in such a situation because “the option to lose their means of livelihood or to pay the penalty of self-incrimination is the antitheses of free choice to speak out or remain silent.” 385 U.S. at 497 , 87 S.Ct. at 618 . Indeed, the Supreme Court explained that “[wjhere the choice is ‘between the rock and the whirlpool,’ duress is inherent in deciding to ‘waive’ one or the other.” 385 U.S. at 498 , 87 S.Ct. at 619 (quoting Union Pac.

R.R. Co. v. Pub. Service Comm., 248 U.S. 67, 70 , 39 S.Ct. 24, 25 , 63 L.Ed. 131 (1918)). In Holloway v. State, an investigation was being made into the theft of a large quantity of heroin from the property room of the Baltimore City Police Department. Holloway, a Baltimore City Police Officer, was interrogated several times about the missing heroin.

Holloway contested the admissibility of his statements, alleging that a police department policy existed that stated that if a member of the department refused to give a statement to a superior officer when ordered or requested to do so, he would face disciplinary action and possible termination of employment. Based on those facts, this Court, albeit by way of dicta, observed that “the statements were involuntary as a matter of law, because of the existence of a departmental policy of disciplining those who refused to give such statements.” Holloway, 26 Md.App. at 388 , 339 A.2d 319 . We reasoned that the case was “controlled by the decision of the Supreme Court in Garrity v. New Jersey.” Id. The appellant argues that both of those cases hold that when a police officer is threatened with administrative discipline for refusing to give a statement, then the statement ²¹³ cannot be considered to have been freely and voluntarily given as a matter of law.

The appellant argues, therefore, that the trial court erred in admitting his statements at trial because he had been informed that he could be subject to disciplinary action if he refused to give the statements. The obvious flaw in the appellant’s argument is that its factual predicate was never established. Unlike the situations in Garrity and Holloway , the appellant was never threatened with the loss of a job or any other disciplinary action if he chose to remain silent. Again, unlike the situations in Garrity and Holloway , the necessary precondition did not exist to bring some occupational sanction to bear on the appellant.

As we explained at length in the context of the LEOBOR-based contention, the appellant was never required, much less ordered, to give a statement to the Howard County Police Department. Without having been ordered to give a statement, he was, therefore, never in any danger of facing disciplinary action if he chose to remain silent. The absence of any express threat and the absence of any automatic (or even likely) occupational sanction for the appellant’s remaining silent make Garrity and Holloway completely inapposite to the situation at bar. 2. Garrity Does Not Establish a Rule That Is Either Prophylactic in Purpose or Per Se in Application Even if Garrity and Holloway were factually apposite to the case before us, however, the appellant would still be incorrect in arguing that those cases dictate automatic exclusion. 2 The flaw in the appellant’s approach is that of a blurred analytic focus.

At times he complains of the compelling or coercive effect that the fear of a job loss subjectively had on his choice to remain silent. When faced, however, with Judge ²¹⁴ Dudley’s explicit findings of fact that his statement was voluntarily made and completely free of any imagined fear of occupational reprisal, he switches glibly into a completely different gear and complains that the objective behavior of the interrogating officer automatically called for suppression as a matter of law, quite regardless of whether it had any actual subjective impact on him or not. It is for this purpose that he seeks to exploit Garrity and Holloway . The appellant, however, may not wander back and forth between two or three distinct and disparate approaches.

He may, to be sure, make multiple exclusionary arguments— provided they are máde one at a time — but he may not combine two or three very different exclusionary principles into a single omnibus argument. When confronted, therefore, with a contention such as the appellant’s claim that his statement was. unconstitutionally involuntary, we cannot undertake a principled analysis until we have first selected the proper analytic focus. Is it an objective focus simply on what happened? Or is it a subjective focus from inside the defendant’s head?

Are we primarily interested in “policing the police” or in protecting the defendant? Are we being asked to apply an undeviating rule of broad application or a fact-specific remedy tailored ad hoc to one defendant on one occasion? Until we have selected our proper doctrinal microscope we cannot begin our examination, for factors that might move us under one mode of analysis may be reduced to matters of blithe unconcern under another mode of analysis. Before any clean analysis may begin, there are several distinctions that must be recognized and several approaches that must be sorted out.

There is first the question of the purpose of an exclusionary rule. Is it prophylactic or is it remedial? Then there is a distinct question as to the manner of applying an exclusionary. rule. Whether the purpose be prophylactic or remedial, do some circumstances sometimes call for the per se application of the rule or should its application always be decided on an ad hoc basis by looking at ²¹⁵ the totality of the circumstances?

Generally speaking, a prophylactic exclusionary rule is objective in its focus and per se in its application. An exclusionary rule that is remedial in purpose, by contrast, is generally subjective in focus and almost always, albeit not universally, calls for an ad hoc rather than a per se application. Let us turn first to the question of a rule’s purpose. a. The Exclusion of a Compelled Confession is Not Prophylactic Some exclusionary principles are concerned with an objective appraisal of governmental conduct itself.

Such an approach leads, as with the Fourth Amendment’s exclusionary rule, to a prophylactic sanction that is designed to deter inappropriate investigative behavior. Given the governmental misbehavior, such a rule applies automatically as a matter of law and is unconcerned with the subjective impact that the forbidden conduct may have on a particular defendant on a particular occasion. A classic example of a prophylactic exclusionary sanction is the Fourth Amendment exclusionary rule established by Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). It is not aimed at making the victim of an unreasonable search whole.

Its purpose is “to police the police,” to deter future unreasonable searches and seizures for the greater good of “the People” generally. Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976). Its design is more to regulate governmental behavior than to protect an aggrieved defendant from adverse consequences. By contrast, an exclusionary rule that is remedial in purpose is aimed at protecting the constitutional rights of an individual defendant.

The contrast between a violation of the Fourth Amendment and a violation of the Fifth Amendment privilege is illuminating. When police officers perpetrate an unreasonable search or seizure, the Fourth Amendment violation is a fait accompli; what the impact may be on an individual defendant is immaterial. In the case of the Fifth Amendment privilege, by contrast, the most outrageous police conduct employed in an attempt to extract a compelled confession is ²¹⁶ not, in and of itself, a violation of the Fifth Amendment privilege. That violation does not occur unless and until the target “person” is actually “compelled ... to be a witness against himself.” Warrantlessly to smash in a door may be a Fourth Amendment violation per se.

To torture a suspect is not; it is only when the suspect responds to the torture that the Fifth Amendment privilege is violated. 3 That is the classic difference between objective and subjective focus. When Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964) announced the equation between Fourteenth Amendment involuntariness and Fifth Amendment-compulsion and first made the Fifth Amendment privilege applicable to the states, it made very clear that the focus of the. Fifth Amendment privilege is on the subjective impact that official conduct has on an individual defendant: Under this test [whether a person has been “compelled ... to be a witness against himself’], the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was “free and voluntary.” ... In other words the person must not have been compelled to incriminate himself. 378 U.S. at 7 , 84 S.Ct. at 1493 (citations omitted).

The resolution of the first question before us, therefore, is easy. In contending that his statement to his police superior should have been suppressed because it was involuntary, the appellant is clearly arguing for a remedial exclusionary rule and not a prophylactic one. Both the Garrity and Holloway situations are now grounded in the Fifth Amendment privilege. Exclusion pursuant to it is remedial, not prophylactic. ²¹⁷ b.

The Fifth Amendment Privilege Does Not Lend Itself to Per Se Exclusion That tilts us decidedly away from the purely objective focus and the per se application that the appellant urges on us, but not conclusively so. Even within the smaller universe of remedial exclusionary rules, there is sometimes a per se application based on an objective focus, although most of the time there will be an ad hoc application based on the totality of the circumstances as they come to bear subjectively on a defendant. Even when the purpose in applying an exclusionary rule is indisputably to protect the defendant, there are certain contexts that trigger a per se application of the rule in lieu of an ad hoc determination as to whether it is necessary. Instead of measuring actual impact on, or prejudice to, a particular defendant, the prejudice is conclusively presumed.

In confession cases, such a per se application is the approach taken when a challenged confession offends the Sixth Amendment right to the assistance of counsel or when it violates the judicially-devised and purely implementing rules of Miranda v. Arizona, (as opposed to a violation of the undergirding Fifth Amendment privilege against compelled self-incrimination itself). (For the difference in focus employed when examining a violation of the implementing rule and when examining a violation of the undergirding constitutional principle, see Oregon v. Elstad, 470 U.S. 298, 304-07 , 105 S.Ct. 1285, 1290-92 , 84 L.Ed.2d 222, 229-31 (1985); New York v. Quarles, 467 U.S. 649, 654 , 104 S.Ct. 2626, 2630 , 81 L.Ed.2d 550 (1984).) The per se exclusion in the case of a violation of the Sixth Amendment right to counsel and the limited per se exclusion from the State’s case in chief for a violation of the Miranda rules are dependent, however, not simply on the conclusive presumption of prejudice. An equally significant reason for the per se application is the administrative convenience and judicial time saving accomplished by virtue of a standardized or uniform rule. The “bright line formula” approach makes for easy and efficient administration. ²¹⁸ By way of sharp contrast, the determination of whether a challenged confession was involuntary under the general due process clause of the Fourteenth Amendment (applicable to cases coming out of the state courts prior to 1964) or is compelled within the contemplation of the Fifth Amendment privilege against compelled self-incrimination (recognized to be applicable to federal cases at least since 1897 and to both federal and state cases since 1964), has always been an ad hoc inquiry depending on the totality of the circumstances.

Objectively viewed investigative behavior does not, ipso facto, give rise to a conclusive presumption of prejudice. The resolution of the issue always requires a subjective focus on an individual defendant. When the subjective focus is thus on the defendant, the governmental conduct itself, no matter how outrageous, is of only indirect legal significance and matters only to the extent that it is determined to have been the catalytic agent that effectively produced the confession. Precisely the same investigative misbehavior, therefore, may well produce the exclusion of the confessions of certain defendants while not necessitating the exclusion of the confessions of other similarly situated but better endowed defendants.

Even with an offensive interrogation technique as an immutable constant, the confessions of those who are 1) of tender age, 2) psychologically fragile, 3) of borderline I.Q., or 4) inexperienced with the law may well be the compelled products of a “will overborne,” whereas the confessions of others who are 1) more mature, 2) psychologically stronger, 3) of richer intellectual endowment, or 4) more “savvy” in the ways of the law may well be the non-compelled products of a “free will.” Faced with precisely the same intimidation, some stout wills remain free while others are easily overborne. The focus is not on whether the investigative conduct would generally be compelling to most subjects or even on whether the interrogators meanly and maliciously intended to compel a confession, but exclusively on whether the particular confession in issue was in fact compelled. Under such an approach, per se exclusion is never automatically called for as a matter of ²¹⁹ law. There is always a factual question as to the actual causative effect of the official conduct on the unique confession of a unique suspect.

In addressing the' appellant’s contention that his statement was unconstitutionally involuntary, our focus will very definitely be subjective. Our concern is with whether there was a violation of the Fifth Amendment privilege against compelled self-incrimination, made applicable to the states through the due process clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964). Under such an analysis, the terms “compelled” and “involuntary” are synonymous.

In bringing the review of challenged “involuntary” confessions in state court cases under the coverage of the specific Fifth Amendment privilege, Malloy v. Hogan observed: [TJoday the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when, in Bram v. United States [ 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897)] ... the Court held that “[i]n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” 378 U.S. at 7 , 84 S.Ct. at 1493 (citation omitted). The equation of an “involuntary confession” with a “compelled confession” is clear. In Reynolds v. State, 88 Md.App. 197, 215 , 594 A.2d 609 (1991), aff'd, 327 Md. 494 , 610 A.2d 782 (1992), this Court traced the parallel histories of “involuntariness” under the Fourteenth Amendment and “compulsion” under the Fifth Amendment and discussed the identity of the two terms: Whereas the criterion for determining inadmissibility in a state trial was involuntariness within the contemplation of the due process clause, the counterpoint criterion for deter ²²⁰ mining inadmissibility in a federal trial was compulsion within the contemplation of the Fifth Amendment privilege. Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897).

A doctrinal marriage was made in 1964 when the Supreme Court overturned half a century of precedents and held that the Fifth Amendment privilege was incorporated into the Fourteenth Amendment. Malloy v. Hogan. Although Malloy v. Hogan did not itself deal with a confession, it supported its incorporation argument by pointing out that a large part of the Fifth Amendment privilege, that prohibiting compelled confessions, was already applicable to the states by virtue of the Fourteenth Amendment’s ban upon involuntary confessions. It was clear that a compelled confession according to the Fifth Amendment and an involuntary confession according to the Fourteenth Amendment were one and the same, (citations omitted).

See also Hof v. State, 97 Md.App. 242, 269 , 629 A.2d 1251 (1993), aff'd on other grounds, 337 Md. 581 , 655 A.2d 370 (1995) 4 (“Bram [v. United States ] left no doubt that the test of voluntariness, now embodied within the Fifth Amendment privilege, was the traditional common law test of voluntariness.”) The broad sweep of the Fifth Amendment privilege cases makes it very clear that the question of whether a statement is compelled calls for an ad hoc determination with a focus exclusively on the subjective state of mind of the defendant giving the statement. In Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), the Court held that notwithstanding mere-Miranda violations that called for the per se exclusion of a confession from the State’s case in chief, a subjective focus on the defendant under the totality of the circumstances revealed that the undergirding Fifth Amend ²²¹ ment privilege had not been violated and that the exclusion of derivative evidence under the “fruit of the poisonous tree” doctrine was, therefore, not appropriate. The Court observed: [T]he police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda . Certainly no one could contend that the interrogation faced by respondent bore any resemblance to the historical practices at which the right against compulsory self-incrimination was aimed. 417 U.S. at 444 , 94 S.Ct. at 2364 .

Our determination that the interrogation in this case involved no compulsion sufficient to breach the right against compulsory self-incrimination does not mean there was not a disregard, albeit an inadvertent disregard, of the procedural rules later established in Miranda. 417 U.S. at 445 , 94 S.Ct. at 2364 (Emphasis supplied). But we have already concluded that the police conduct at issue here did not abridge respondent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda. 417 U.S. at 445-46 , 94 S.Ct. at 2364 . In United States v. Washington, 431 U.S. 181, 188 , 97 S.Ct. 1814, 1819 , 52 L.Ed.2d 238, 245 (1977), the Supreme Court expressly referred to the “totality of the circumstances” as the appropriate test for determining whether a statement had been compelled: The constitutional guarantee is only that the witness be not compelled to give self-incriminating testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne.

Rogers v. Richmond [ 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 ] (1961). (First emphasis in original; other emphasis supplied; citation omitted). ²²² In New York v. Quarles, 467 U.S. 649, 654 , 104 S.Ct. 2626, 2630 , 81 L.Ed.2d 550, 555 (1984), the Supreme Court made it clear that the Fifth Amendment privilege has not been violated unless the damaging admission has actually been “coerced”: The Fifth Amendment itself does not prohibit all incriminating admissions; “[ajbsent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” (Emphasis in original). In Oregon v. Elstad, 470 U.S. 298, 306-07 , 105 S.Ct. 1285, 1291-92 , 84 L.Ed.2d 222, 230-31 (1985), the Supreme Court again held that although a Miranda violation may call for the per se exclusion of a statement from the State’s case in chief, such a statement will not be barred for other purposes unless it is determined that it was actually “compelled”: The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion____ But the Miranda presumption, though irrebuttable for purposes of the prosecution’s case in chief, does not require that the statements and their fruits be discarded as inherently tainted.

(Emphasis in original; citations omitted). In Moran v. Burbine, 475 U.S. 412 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986), Justice O’Connor was dealing not with the voluntariness of an ultimate confession itself but, in terms of the appropriate analysis, the indistinguishable voluntariness of a Miranda waiver. The Court accepted, arguendo, the fact that the police may have engaged in highly reprehensible conduct in keeping an attorney from contacting his client, Burbine. In eschewing any per se exclusion based on the police conduct itself and in emphasizing the highly subjective nature of the voluntariness decision, the Court in effect said that what the defendant does not know will not hurt him: [T]he state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election ²²³ to abandon his rights.

Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident. 475 U.S. at 423 , 106 S.Ct. at 1142 (emphasis supplied). The • Court’s opinion stressed the fact that in dealing with the privilege against compelled self-incrimination, the only pertinent criterion is the impact that official activity may have on a defendant’s subjective state of mind: At the outset, while we share respondent’s distaste for the deliberate misleading of an officer of the court, reading Miranda to forbid police deception of an attorney “would cut [the decision] completely loose from its own explicitly stated rationale.” Beckwith v. United States, 425 U.S. 341, 345 [ 96 S.Ct. 1612, 1615 , 48 L.Ed.2d 1 ] (1976). As is now well established, “[t]he ... Miranda warnings are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect’s] right against compulsory self-incrimination [is] protected.’ ” New York v. Quarles, 467 U.S. 649, 654 [ 104 S.Ct. 2626, 2630 , 81 L.Ed.2d 550 ] (1984), quoting Michigan v. Tucker, 417 U.S. 433, 444 [ 94 S.Ct. 2357, 2364 , 41 L.Ed.2d 182 ] (1974).

Their objective is not to mold police conduct for its own sake. Nothing in the Constitution vests in us the authority to mandate a code of behavior for state officials wholly unconnected to any federal right or privilege. The purpose of the Miranda warnings instead is to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of the suspect’s Fifth Amendment rights. Clearly, a rule that focuses on how the police treat an attorney — conduct that has no relevance at all to the degree of compulsion experienced by the defendant during interrogation — would ignore both Miranda’s mission and its only source of legitimacy. 475 U.S. at 424-25 , 106 S.Ct. at 1142-43 (first emphasis in original; other emphasis supplied). ²²⁴ In Colorado v. Connelly, 479 U.S. 157, 164 , 107 S.Ct. 515, 520 , 93 L.Ed.2d 473, 482 (1986), the Supreme Court again made the point that an objective view of police conduct itself will not give rise to the per se exclusion of a challenged confession but that what is required is a causal connection between the police conduct and the resulting confession: Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.

(Emphasis supplied; footnote omitted). In the path of this juggernaut of Fifth Amendment authority to the contrary, the appellant- continues to maintain that Garrity and Holloway call for per se exclusion. To simplify our analysis, it will be helpful to reduce the duality of Garrity and Holloway to the singularity of Garrity . The language relied on by the appellant from Holloway v. State was dicta.

Holloway’s conviction was actually affirmed. His challenges to two of his three confessions were held to be not preserved for appellate review. The third confession was held to be cumulative and its admission no more than harmless error. In Holloway , moreover, there was no question before the Court as to objective versus subjective focus or as to per se exclusion versus a totality-of-circumstances determination.

Holloway simply followed what it believed to be the rule of Garrity . To the extent to which Holloway suggests any exclusionary principle contrary to that which we announce in this opinion, Holloway is expressly disavowed. The appellant argues that Garrity mandates per se exclusion. The proper question, however, is not whether Garrity calls for per se exclusion.

The Garrity situation would today be a Fifth Amendment privilege case. The proper question should be whether the Fifth Amendment privilege calls for per se exclusion. As has been comprehensively established, it does not. Before seizing on a few random words from an isolated case and treating them as Holy Writ, therefore, attorneys should strive for a larger perspective.

If when one surveys the broad ranks of the Fifth Amendment cases, one ²²⁵ spots a maverick (Garrity — perhaps) that seems to be wandering off in an eccentric direction, it should obviously be seen as a very risky guide to follow. Absent some cogent explanation as to why it is marching to a different drum, the overwhelming likelihood is that it is simply an inadvertent and embarrassing anomaly. One can dismiss the proposition for which the appellant cites Garrity in a number of ways. For starters, it is by no means certain that Garrity necessarily stands for per se exclusion.

In terms of the standard of review and the modality of exclusion being applied, Garrity , at best, wanders in its focus and, arguably, does not even focus on such questions at all. The Garrity decision was a five-to-four split decision. The seven-page opinion of Justice Douglas for the five-justice majority was in many ways cursory in its analysis. Although Garrity was decided three years after Malloy v. Hogan made the Fifth Amendment privilege applicable to the states, Justice Douglas’s opinion still sounds in the language of general Fourteenth Amendment voluntariness.

(No dates are given for the interrogations in issue and there is no consideration of whether the analysis is properly to be made under the general due process clause of the Fourteenth Amendment or under the Fifth Amendment privilege.) In the more carefully analyzed dissent of Justice Harlan, by contrast, the majority opinion is criticized as “stem[ming] from fundamental misconceptions about the logic and necessities of the constitutional privilege against self-incrimination.” 885 U.S. at 500-01, 87 S.Ct. at 620 . The difference is not critical, however, because both Fourteenth Amendment involuntariness and Fifth Amendment compulsion would be subjected to the same “totality of circumstances” mode of analysis. It does illustrate, however, the arguably “slap-dash” treatment of the issues, other than the bottom-line result, in the majority opinion. Confining ourselves to the majority opinion alone, some of its language does, to be sure, lend itself to the interpretation that it is announcing a rule of per se exclusion.

Other ²²⁶ language, by way of sharp contrast, very definitely describes the issue before the Court as that of