author: Gilbert, C. J.,

text:
    HUGH HARTMAN BALDWIN, JR. v. STATE OF MARYLAND
    [No. 992,
    September Term, 1979.]

      Decided April 15, 1980.

    The cause was argued before Gilbert, C. J., Wilner and Couch, JJ.

      William F. Sheehan, with whom were William N. Eskridge, Jr., Alfred L. Scanlan, John D. Aldock, Richard H. Sothoron, Jr., Stanley J. Klos, Jr., and Shea & Gardner and

      Shipley, Knight, Manzi & Zanecki on the brief, for appellant.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Sidney S. Campen, Jr., State’s Attorney for Talbot County, on the brief, for appellee.

       Note: Certiorari granted, Court of Appeals of Maryland, July 3, 1980.

   Gilbert, C. J.,

delivered the opinion of the Court.

THE LAW —

Judge J. Dudley Digges, writing for a unanimous Court of Appeals, declared that the Federal Wire Interception and Interception of Oral Communications sections (18 U.S.C. §§ 2510-2520 (1976)) of the Omnibus Crime Control and Safe Streets Act of 1968 "sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” (Emphasis in original.) State v. Siegel, 266 Md. 256, 274, 292 A.2d 86, 95 (1972), aff'g 13 Md. App. 444, 285 A.2d 671 (1971).

Although the above-quoted words of Siegel have not been chiseled into granite, we have, in a series of cases, endeavored to impress on the bench and bar that the words mean precisely what they say. See e.g., Shingleton v. State, 39 Md. App. 527, 387 A.2d 1134, cert. denied, 283 Md. 738 (1978); Poore v. State, 39 Md. App. 44, 384 A.2d 103, cert. denied, 282 Md. 737 (1978); Calhoun v. State, 34 Md. App. 365, 367 A.2d 40 (1977). See also, Gilbert, "A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law,” 8 U. of Balt. L. Rev. 183 (1979) .

We have not deviated in the slightest from Siegel’s prescribed path. Whenever a pre-interception violation or violation committed during the course of the execution of the interception order, as distinguished from post-interception violations, has occurred, we have directed that the evidence derived from the legally faulty interception be suppressed. Md. Cts. & Jud. Proc. Code Ann. (1980 Rep. Vol.) § 10-405; Carter v. State, 274 Md. 411, 337 A.2d 415 (1975) (construing the federal statute).

The Maryland Wiretapping and Electronic Surveillance Law, Md. Cts. and Jud. Proc. Code Ann. (1980 Rep. Vol.) §§ 10-401 — 10-412 is tailored along the lines of 18 U.S.C. §§ 2510-2520 (1976). The alterations to the federal act that were made by the General Assembly before enacting Md. Cts. and Jud. Proc. Code Ann. (1980 Rep. Vol.) §§ 10-401 through 10-412 into law were obviously designed to afford to the people of Maryland a greater protection than Congress had provided in the Omnibus Crime Control and Safe Streets Act of 1968.

Because the drafters of the Maryland Act so carefully tracked the federal statute, 18 U.S.C. §§ 2510-2520 (1976), we look to court decisions interpreting that legislation for guidance in construing the Maryland statutory language.

The Court of Appeals, in Spease v. State, 275 Md. 88, 338 A.2d 284 (1975), aff'g 21 Md. App. 269, 319 A.2d 560 (1974), upheld a conviction based on evidence obtained as a result of a wiretap notwithstanding a post-interception violation of the federal act. This Court, in Poore v. State, supra, commenting upon Spease v. State, supra, noted that there is a vast difference insofar as the sanction for non-compliance is concerned between pre-interception violations and post-interception violations. The reason that the courts are more tolerant of non-compliance by the State with the post-intercept provision of the law is that those sections of the code, while important to the accused, are not vital to his Fourth Amendment rights. Pre-interception violations, however, conflict with that Constitutional Amendment.

At what point does a violation cease to be one of pre-interception and become that of post-interception? Neither the Court of Appeals nor this Court has heretofore expressly decided that question. Patently, if we apply the dictionary definition to pre-interception violations, then of necessity, the violation must occur before the interception has taken place. Similarly, a post-interception violation could only occur after the interception has been made.

Strict application of the terms pre-interception and post-interception creates a hiatus between the two. What then is the effect of a violation occurring within the gap? Are such violations free of sanction? Manifestly, the answer to the latter question is a resounding NO, else the minimization requirements of both the federal act, 18 U.S.C. § 2518 (5) (1976) and that of the State, Md. Cts. and Jud. Proc. Code Ann. (1980 Rep. Vol.) § 10-408 (e), would be utterly meaningless. See Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978); Poore v. State, supra, 39 Md. App. at 71, 384 A.2d at 119.

The tendency to sort all violations of the federal and State wiretap acts into the two categories — pre- and post-interception — ofttimes leads to a confusion in the terms. Just as square pegs do not fit into round holes, violations of the federal and State wiretap acts, occurring during the hiatus between pre- and post-interceptions, do not fit into either of these two classifications.

The problem may be eliminated by viewing the wiretap electronic surveillance law, like all Gaul, "divided into three parts.”

The first part, known as the pre-intercept stage, requires, under Siegel and its progeny, strict compliance with the Md. Cts. and Jud. Proc. Code Ann. (1980 Rep. Vol.) §§ 10-401 through 10-412. The second part may be characterized as the interception or on-going phase, at which time the law enforcement agency actually conducts the electronic interception of the communication. The second phase also necessitates that there not be the slightest deviation from the letter of the act. The third part is stylistically known as the post-interception phase. It dictates what is to be done after the interception has been completed. Violation of the latter does not mandate suppression of the evidence derived from the interception, unless the party whose communication was intercepted can show that he has been prejudiced by the non-compliance with the statute. Spease v. State, supra; Poore v. State, supra. Thus, aware of P.I.P. — i.e., pre-interception, interception, and post-interception — we turn our attention to the instant case.

THE FACTS —

During the month of June 1977, Special Agent Connell J. McGeehan of the Federal Drug Enforcement Administration (FDEA) received information from the San Diego, California office of the same federal agency that "a proven reliable Confidential Informant” had advised that a "HUGH BALDWIN, who resides on the Eastern Shore of Maryland was involved in illicit drug distribution . . . between Florida, Maryland, and the District of Columbia.” The information received through the informant was that Baldwin owned a glass company and a bar. Both businesses were allegedly used as a cover or front for the distribution of illegal drugs.

Earlier, in August 1976, McGeehan had received information from the Montgomery County Police that Baldwin had purchased from the North Strong Chemical Company, Inc., of Rockville, Maryland, certain chemicals that, while not in themselves proscribed dangerous substances, could be used in the manufacture of Controlled Dangerous Substances (CDS). According to the Montgomery County authorities, Baldwin placed the chemicals in the trunk of his car. Apparently, as a result of radio communication, the Baldwin vehicle was stopped by a member of the Washington, D.C. police department. A check of the operator license and registration established the identity of the person operating the vehicle as Hugh Hartman Baldwin of Chestertown, Kent County, Maryland.

The Baltimore office of the FDEA notified McGeehan in December 1976 that a Hugh Baldwin of the Atlantic Glass Company, 22 Port Street, Easton, Maryland, had ordered a five gallon container of phenyl magnesium bromide, a chemical used in the manufacture of CDS. Shortly afterwards, a surveillance of 22 Port Street was undertaken. The five gallons of phenyl magnesium bromide were delivered to the Port Street address by Special Agent Rivera of the FDEA posing, by pre-arrangement, as an employee of a common carrier. Delivery was made to Alfred B. MacKown, Jr.

A continued "stake-out” of the Port Street property was rewarded when Baldwin, the morning of the day after the delivery of the five gallon container, was seen carrying the container and placing it in the trunk of a 1971 Pontiac. Baldwin then drove the vehicle, followed by an agent of FDEA, to a farm house in Queen Anne’s County.

On July 22, 1977, McGeehan was advised that Baldwin had purchased chemicals from North Strong Chemical consisting of thirty gallons of benzene, twelve kilograms of piperidine and eighteen kilograms of cyclohexanone, four kilograms of phenyl acetone, all of which are used in the manufacture of CDS. Additional chemicals were purchased in November and December, 1977 and February and March of 1978. The "majority of the chemicals . .. are known ... to be utilized in the production and/or manufacturing of . .. [CDS].”

Detective Barbara L. King of the Anne Arundel County Police Department learned on March 13, 1978, that one Brenda Head was to receive two to four pounds of phencyclidine (PCP) from a person known as "Speedy.” Alfred MacKown was later determined to be "Speedy.” Because "Speedy” believed he was being followed the delivery was aborted. Subsequently, on March 16, Head met King and a confidential informant at the Oxbow Inn, which is located on Ritchie Highway. Head entered the vehicle occupied by King and sold King a quarter pound of PCP for $425. Head had at the time another one pound bag of PCP. The price for three-quarters of a pound was quoted as $1,225. The quarter pound purchased by King, as well as a quantity obtained from Head in a subsequent purchase, was analyzed at the Anne Arundel County Police Department Laboratory and determined to be PCP, a Schedule II CDS. See Md. Ann. Code art. 27, § 279(b)d.5.

"Speedy’s” address was ascertained to be 22 Port Street, Easton, Maryland. At that address the FDEA officers and the Maryland State Police (MSP) conducted "numerous intermittent stationary and mobile surveillances” during the period of January 17, 1977 — April 3, 1978.

As a result of telephone calls from Head to Atlantic Glass, King’s purchase of PCP from Head, the other purchase of PCP from Head, and Head’s advising King and another officer that she, Head, could only contact "Speedy” at the shop, together with "Speedy’s” address being the same as Atlantic Glass, the police believed the "shop” and Atlantic Glass were one and the same.

The police then, through the State’s Attorney of Talbot County sought a wiretap on Atlantic’s telephone.

The affidavit averred that "BALDWIN and MACKOWN have set up and have access to a clandestine laboratory used to manufacture ... [CDS].” The affidavit further asserted that a wiretap would enable the police to learn the identities of "persons as yet unknown who are conspiring to violate the ... [CDS] Laws ... as well as those persons ... [who obtain the CDS] for re-distribution to lower echelon persons .. . unknown.”

The joint affiants stated that from their experience and training they had "probable cause to believe” that Baldwin and MacKown, Jr., wére "conspiring to manufacture and distribute .. . [CDS],.. .”

The affidavits asseverated that without a wiretap they would be unable to learn "the identities and/or degree of participation of the 'higher-ups,’ and any co-conspirators....” The surveillance at Atlantic had failed to reveal the strong chemical odors normally associated with "Clandestine laboratories.”

Normal police activity would, the affiants stated, "appear to be unlikely to succeed if tried or to be too dangerous to use....” The affidavit recited:

"1. Your co-affiants know from their past experiences, knowledge, and training that a 'blind buy’ (an attempt to purchase Controlled Dangerous Substances from a violator without prior introductions being made by anyone) would fail in an attempt to obtain evidence against ALFRED MACKOWN or HUGH HARTMAN BALDWIN JR. or to identify the 'higher-ups’ and/or co-conspirators due to statements made by BRENDA HEAD concerning MACKOWN [sic] being paranoid of strangers.
2. Your co-affiants, from past experience and knowledge as stated above, knows [sic] that other associates of ALFRED MACKOWN JR. and HUGH BALDWIN JR. cannot be approached to give information regarding their involvement in trafficking and manufacturing Controlled Dangerous Substances without the danger of them (associates) revealing the existence of the investigation.
3. Were a Search and Seizure Warrant to be obtained for the Atlantic Glass Company, 10 thru 22 Port Street, Easton, Talbot County, Maryland it is unlikely to succeed in showing either MACKOWN’S or BALDWIN’S total involvement in these illegal activities since it is unknown as to when MACKOWN or BALDWIN would be in possession or [sic] large quantities of Controlled Dangerous Substances. Further, a Search and Seizure Warrant would not identify the source of supply or the location of a clandestine laboratory.
4. Were the Court to only authorize a 'Pen Register’ device to be used, it would only allow your co-affiants to know telephone numbers which MACKOWN calls. It would not intercept pertinent conversations or identify the persons to whom MACKOWN or BALDWIN makes arrangements to manufacture, distribute and/or possess Controlled Dangerous Substances.
5. Your co-affiants from past experiences and knowledge, knows [sic] that the various kinds of investigative techniques described above as having tried and failed, appear unlikely to succeed to pinpoint the degree of participation in violations of the Controlled Dangerous Substance Laws by HUGH BALDWIN JR. and ALFRED MACKOWN JR. and the participation of others unknown, since the investigative techniques have produced little or no evidence up to this point despite the many hours spent on them.
6. Your co-affiants from past experience and knowledge know that other traditional methods of investigating have proven to be ineffective to apprehend persons involved in the above mentioned Controlled Dangerous Substance operation since the telephone itself in fact becomes an instrumentality of the crime.”

The order authorizing the wiretap was issued, as we have previously observed, on April 13, 1978. The issuing judge found probable cause to believe that the CDS laws of Maryland were being violated; that "normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried or to be too dangerous!;]” that evidence "leading to the solution of these crimes, [and] to the identity of’ others involved cannot otherwise be obtained.

The concluding paragraph of the interception order provided:

"ORDERED that at present, the ... [MSP] shall be required to report to the Court on what progress has been made towards the achievement of the authorized objection and the need for continued interception at a time period and in a manner as designated by the Court.”

Whatever was "designated by the Court” is not revealed by the record. Nevertheless, four unsigned "Status Report Record[s]” are in the record of the case. They bear dates of April 24, 1978, May 1, 1978, May 8, 1978, and May 16, 1978.

Because of their bearing on our discussion of the law, we quote the pertinent parts of each of those reports:

"April 24, 1978 — 5:30 p.m.
As the result of investigation conducted, no telephone conversations between ... Baldwin Jr. and ... Mackown [sic] Jr. have occurred or monitored.... It appears that Baldwin and Mackown [sic] are meeting in person and not using the telephone.... No calls have been monitored which would lead to the location of a clandestine laboratory. [Of 245 telephone calls that were intercepted, four were 'related conversations.’]”
"May 1, 1978 — 5:30 p.m.
The precursors order by Baldwin from the NorthStrong are not at the Chemical Company as yet.... Once the precursors arrive the investigation should progress. [458 telephone calls were intercepted, 11 were related.]”
"May 8, 1978 — 5:30 p.m.
[S]till no calls have been monitored between ... Baldwin Jr. and ... Mackown [sic] Jr. ... [S]urviellance [sic] has indicated they are meeting in person at the Atlantic Glass Company.. .. [652 telephone calls intercepted, 14 related.]”
"May 16, 1978 — 5:03 P.M.
During the investigation the wire tap was terminated on May 16, 1978 at 3:57 P.M. Some of the related conversations obtained from the wire tap along with other information obtained from surveillances and investigation were used to obtain a Search and Seizure Warrants [sic] for . .. Atlantic Glass ... and the farm house owned by ... Mackown [sic] Jr. During the execution of the Search and Seizure Warrant a large quantity of... [PCP] was recovered... . [874 telephone calls were intercepted, 16 were related.]”

The State’s Attorney for Talbot County filed an eight count Criminal Information against Baldwin charging six violations of the CDS laws and two of maintaining a common nuisance. Because of pre-trial publicity the case was removed, on July 28, 1978, to Cecil County.

MOTIONS TO SUPPRESS

Motions to suppress the evidence gained as a result of the wiretap order and the search and seizure warrants were filed on behalf of Baldwin in the circuit court on October 2,1978. A hearing on the motions was held on October 30, 1978. At that time the hearing judge observed that the movant had not complied with Md. Rule 736. That rule requires that a motion asserting "[a]n unlawful search, seizure, interception of wire or oral communications . . . shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court.. . .” Md. Rules 736 a 3 and 736 b. Failure to abide by the rule constitutes a waiver. Md. Rule 736 a. Yet, the rule, like many other general rules, is not without exception. The "built-in” exception to Rule 736 is the proviso that "the court [may] for good cause shown” excuse compliance with the tenets of Rule 736 and permit the filing of the motion. It is then treated as if it had been timely filed.

Baldwin’s counsel acknowledged that the motions were filed after the expiration of the time frame specified in Rule 736 b, but he advised the hearing judge that the State’s Attorney for Talbot County knew that the defense was preparing suppression motions and the prosecutor "had indicated ... that because he was tied up with a trial in Chestertown and had a heavy trial docket besides that,” he would like Baldwin’s counsel to "extend the courtesy ... of waiting a period of time before” filing "the motions.”

Mr. Campen, the Talbot County State’s Attorney, then said to the court:

"[T]he representations by [Defense] Counsel are correct to the extent that I was involved in a murder trial in the summer that consumed the better part of two months. I think to put it in its proper perspective, Mr. Southoron [Defense counsel] and I have been quite open and candid with each other in terms of all of our dealings. He has had complete access to my files and I think he’s been certainly open and candid with the State.
It was a mutual thing, however, in that we realized both, early on, that the suppression matter was going to be of paramount importance in this case. And because of its importance and because of my trial schedule, I agreed not to object to the timeliness of his filing the motions. And he indicated to me that he was going to need time also. And it was by mutual agreement that we were not going to challenge each other under Rule 736. I agreed not to do that and I would request the Court to consider hearing those motions today because I feel the State and Counsel mutually agreed that we would not raise an issue of the filing time. And I think his statement is correct in that regard.”

Following Mr. Campen’s remarks the court replied, "Well, of course, you understand if I rule that.. . [Baldwin] waived ... [his] right to move to suppress,. . . the evidence will come in.. ..” Mr. Campen responded, "I cannot in conscience stand here and ask the Court to do that.. . .” The judge then said, "I don’t think you have to ask the Court to do it. I think the Court can do it sua sponte.”

After expressing his belief that Baldwin’s failure to file the motions within the time prescribed by Rule 736 b constituted a waiver of the right to file such motions, the judge, applying the old saw "[t]he better part of valor is discretion,” went on to say that "in the event that the appellate court would disagree with me, I am going to hear the matter as though it. . . [the motions] were timely filed.” The court then proceeded to hear the matters conditionally. The same day the court entered an order in which it noted that "[t]he five motions to suppress were not filed until . . . 69 days after the appearance of counsel. No cause at all has been shown for failure to file the motion[s] within the 30 day period therefore the right to move to suppress has been waived and the Court hereby refuses to hear or grant the motions, Kohr v. State, [40] Md. App. [92], 388 At. 2d 1242 [(1978)].”

The cautious judge also filed a separate and alternative order on the merits of the respective motions. It is fortunate that he did so because we have an entirely different view of the disposition that should have been made with respect to Rule 736.

We think the court should not have invoked Rule 736 in the case now before us. Contrary to the hearing judge’s opinion the "]n]o cause at all has been shown for failure to file the motion! s] within the 30 day period” specified in Rule 736 b, the record, in our view, demonstrates with clarity that there was "good cause shown.” We think the agreement between the State’s Attorney and Baldwin’s counsel was "good cause,” and that the hearing judge’s refusal to accept it was error. The error, however, is not fatal because, as we have seen, the judge heard and decided the motions notwithstanding his view that they were tardy.

A little over a week after the hearing on the various suppression motions, the judge filed a series of opinions and orders denying the relief sought. The orders of denial are the aorta of this appeal. The hearing judge, in upholding the validity of the wiretap order, wove his way through the maze of allegations upon which both he and the issuing judge determined that there was "probable cause” for the communication interception. A difficulty with that conclusion is that while there was unquestionably "probable cause” for the issuance of a search and seizure warrant, the "probable cause” for the wiretap is not so clear. The facts gathered by the police upon which they built their application for the wiretap order might arguably support the tap in order to ascertain the whereabouts of the "clandestine laboratory.” All that is really said on that subject is that a search of the property of Atlantic Glass "would not identify the source of supply or the location of a clandestine laboratory.” What the applicants for wiretap meant by the "identity of the source” is not explained. Such language, however, has become "boiler plate” when police are dealing with distributors of CDS. In the instant case they knew the source of supply. Raw chemicals were purchased by Baldwin or someone on his behalf and apparently made into PCP and other CDS by Baldwin. Moreover, the only thing in the application that approaches a foundation for the deduction that there is "a clandestine laboratory” is the observation that the police "failed to detect any strong chemical odors from the Atlantic Glass Company which are normally produced from Clandestine laboratories.”

Similarly, the allusion to "higher ups” seems to us to be no more than sheer speculation, wishful thinking or fantasy. There is not one scintilla of fact in the affidavit that gives rise to a reasonable inference the "higher ups” existed. On the contrary, the thrust of the State’s entire case is that Baldwin, a chemist, was the manufacturer of the CDS. At best the allegations with respect to the source of supply and a clandestine laboratory are flimsy.

We need not and do not here decide whether the application for the wire communication interception order set forth adequate "probable cause” because the order was legally infirm for another reason. We do observe, however, that to allow a wiretap or other electronic interception of an oral communication on the strength of a bald assertion of the desire to learn the identity of "higher-ups” is to defy the legislative intent and to render nugatory the provision of the statute that commands a showing of probable cause.

The hearing judge correctly observed that the wiretap order did not comport with the requirements of Md. Cts. and Jud. Proc. Code Ann. (1980 Rep. Vol.) § 10-408 (f). That section provides:

"Whenever an order authorizing interception is entered pursuant to this subtitle, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at the intervals the judge requires.” (Emphasis supplied.)

The hearing judge found, and we agree, that the issuing judge did not follow the statute with respect to requiring periodical progress reports. All the issuing judge did was to set out "in the language of the State statute” that "the police shall report 'at a time period and in a manner designated by the Court.’ ”

The statute requires more than a mere superficial compliance in the form of quoting its wording. It means what it says. The issuing judge shall provide in the order for the interception that the police report to the judge at designated intervals on the progress being made by the police in attaining their objective.

Section 10-408 (f) was enacted so as to assure the public that notwithstanding the issuance of a wiretap order, its use would be, insofar as possible, controlled by a neutral authority, the issuing judge, and that it would continue no longer than necessary so as to minimize the intrusion into the privacy of others. One obvious reason for the reports is that if the police obtained their objective with the first interception on the first day the order was in effect, there would be no need to continue the interception for another 29 days.

The hearing judge recognized that the State statute "sets up a strict procedure that must be followed,” but he believed that the deviation from the statute, in the case sub judice, was a post-interception variance, thus requiring no more than substantial compliance. Poore v. State, supra. We have an entirely different point of view.

As we see it, the violation of section 10-408 (f) is not a post-interception deviation, but a violation of an integral part of the second phase of the order, the intercept stage, and, therefore, strict compliance with the State statute is mandated. Carter v. State, supra; State v. Siegel, supra; Poore v. State, supra; Calhoun v. State, supra. Consequently, the hearing judge erred in holding that the wiretap order was lawful and the evidence derived therefrom admissible. We reverse his holding.

SEARCH AND SEIZURE WARRANTS —

(Atlantic Glass Company)

There yet remains the matter of whether, absent the information obtained through the impermissible use of the wire communication interception, there was enough independent information in the application for the two search warrants to support probable cause for their issuance.

Any fair reading of the affidavit in support of the search and seizure at the premises of Atlantic Glass can lead to but one conclusion, and that is that all the information obtained therein was either directly attributable to the wiretap order or derived therefrom. When the tainted information is peeled from the affidavit in support of the search and seizure at Atlantic Glass, nothing is left that bears any semblance to probable cause in support of the issuance of the warrant.

(Dwelling and Premises on Route 662)

We treat the search and seizure warrants separately because their foundations, the affidavits in support thereof, were constructed of different materials. The affidavit supporting the search and seizure warrant with regard to the Route 662 property did spell out in detail sufficient data, obtained independently of the wiretap, to support a finding of probable cause on the part of the District Court judge that issued the warrant.

The recitation of facts as contained in the affidavit of Corporal George B. Spicer of the MSP showed Spicer’s training and expertise in the field of CDS violations; his having been informed by agents of the FDEA of the suspected illegal activities of Baldwin and MacKown; Baldwin’s purchase of quantities of chemicals that were used in manufacturing PCP and other CDS; the delivery of those chemicals to the premises occupied by Atlantic Glass; Baldwin’s transporting of the chemicals from Atlantic Glass to the farm house in Kent County, Maryland; a list of nineteen different chemicals together with the quantity of each and the type, if known, of CDS in which the chemical was used; the purchase of PCP by Detectives Snow and King of the Anne Arundel County Police Department from Barbara Head and Ms. Head’s connection with MacKown; Head’s telephone calls to MacKown at his "shop” (Atlantic Glass); Baldwin’s frequent visitations to Atlantic. That information, coupled with Spicer’s experience gave rise to an inference of probable cause to believe that Baldwin was engaged in the manufacture of PCP and other CDS, and that at least part of the operation was being conducted in or around the farm that Spicer wanted to search.

We think the hearing judge was right in ruling that the evidence obtained from a search of the farm was admissible. The admissibility of that evidence, however, does not cure the defect in the proceedings. We must reverse and remand for a new trial because there is no way to determine what effect the illegally obtained evidence had on the minds of the jurors, vis a vis, the legally admissible evidence, nor can we determine how the jury sifted, weighed and applied the evidence to the various counts of the indictment.

We do not reach the other issues raised by Baldwin inasmuch as they may not arise at a retrial.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Talbot County, Maryland.

      . See Gilbert, supra.

      . Ibid.

      . State v. Siegel, supra.

      . Spease v. State, supra; Poore v. State, supra.

      . From Julius Caesar (100-44 B.C.) De Bello Gallico I, 1. where it is written "Gallia est omnis divisa in partes tres.” (All Gaul is divided into three parts.)

      . See also Gilbert, supra.

      . Mr. MacKown was subsequently arrested and charged, but he is not involved in this appeal.

      . Quoted from the affidavit in support of an application for the wiretap order that was granted by the Circuit Court for Talbot County on April 13, 1978.

        . Phencyclidine is also known as "Angel Dust.”

      . Same source as n. 8, supra.

      . The State’s Attorney is the proper person to seek such an order. Md. Cts. and Jud. Proc. Code Ann. (1980 Rep. Vol.) § 10-406; 18 U.S.C. 8 2516 (2) (1976); Poore v. State, supra; Gilbert, supra.

      . The co-affiants were: Cpl. George B. Spicer, MSP, Det. James M. Snow and Det. Barbara L. King of the Anne Arundel County Police Dept., and Special Agent McGeehan, FDEA.

      . The order, while signed on April 13, 1978, was not effective until 10 a.m., April 17,1978. It continued until "the attainment of the ... objective or in any event,” 11:59 p.m., May 16, 1978.

      . Before the hearing judge, appellant’s counsel referred to the motion as having been filed on September 29, 1978. The docket entries and the clerk’s stamp upon the motions, however, indicate the October 2,1978, date as being correct.

      . Baldwin’s counsel entered his appearance in the case on July 24, 1978. Ergo, under the rule the motions should have been filed no later than August 23,1978. They were actually mailed by counsel to the court and the State’s Attorney on September 29, 1978, although as we have said, n. 14, supra, they were received by the court on October 2, 1978.

      . William Shakespeare 1564-1616, King Henry IV (1597-1598) Part I, Act V, Scene IV, Line 120.

      . Nevertheless, the judge entered an order immediately following the refusal to hear the motions. The order was that the court would hear the motions so that if an appellate court disagreed with the circuit court’s interpretation of Rule 736, the matter would not have to be remanded solely for the purpose of conducting a suppression hearing.

      . We have set out above extracts from the "weekly reports” filed in the instant case.

      . Under the federal statute, reports are not mandated, but the issuing judge may require them. 18 U.S.C. § 2518 (6) (1976).

      . For example, "255 pounds” of "Sodium Hydroxide Pellets” used in "Amphetamine/Phencyclidine”; "1 x 5 gallons,” "cyclohexanone,” "18 x 1 kilograms” of "piperidine,” "4 x 25 Pounds” "sodium bisulfate” all used in PCP.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    J. GORDON BARNES et al. v. COMMISSIONER OF LABOR AND INDUSTRY, DIVISION OF LABOR AND INDUSTRY, MARYLAND DEPARTMENT OF LICENSING AND REGULATION et al.
    [No. 996,
    September Term, 1979.]

      Decided April 15, 1980.

      The cause was argued before Thompson, Wilner and MacDaniel, JJ.

      H. Emslie Parks and Leland S. VanKoten, with whom were Wright & Parks on the brief, for appellants.

      Henry R. Wolfe, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Francis X. Pugh, Assistant Attorney General, on the brief, for appellee Commissioner of Labor and Industry, Division of Labor and Industry, Maryland Department of Licensing and Regulation. Howard J. Schulman, with whom was Peter G. Angelos on the brief, for other appellees.
   Wilner, J.,

delivered the opinion of the Court.

Appellant M. Nelson Barnes & Sons, Inc. (Barnes, Inc.) was a subcontractor on two public school construction projects — Fallston Senior High School in Harford County and Owings Mills High School in Baltimore County. Both projects were deemed subject to the State Prevailing Wage Law (Md. Ann. Code art. 100, § 96, et seq., hereafter referred to as "PWL”), and, accordingly, prevailing wage rates for each job classification had been determined by the Commissioner of Labor and Industry. At some point, one or more of its employees complained to the Commissioner that Barnes, Inc. was violating PWL by failing to pay the prevailing rate for steamfitters to employees doing steamfitting work. Specifically, it was alleged that appellant had misclassified persons doing steamfitting work as plumbers or mechanics and had paid them the prevailing rate for plumbers, which was lower than that for steamfitters.

After investigation, the Commissioner designated an examiner to conduct a hearing into the matter. Present at the hearing were counsel for Local 438 of the Steamfitters union, Local 48 of the Plumbers union, and the Baltimore Building & Construction Trades Council (the Trades Council), an umbrella organization composed of the various construction trade unions (hereafter collectively referred to as "the unions”). Barnes, Inc., a non-union contractor, objected to their presence because none of the unions represented any of its employees; but the hearing examiner nevertheless declared them to be "interested persons,” and thus allowed them not only to remain but to participate in the hearing through the cross-examination of witnesses and the presentation of argument.

The evidence was presented chiefly by an Assistant Attorney General assigned to the Commissioner. See COMAR 09.12.51.05F. At the end of the third day of hearing, it appeared that he had concluded his case; and the hearing examiner turned to counsel for Barnes, Inc., asking if he wished a continuance before commencing his client’s case. At that point, counsel for the Trades Council indicated his desire to subpoena certain records and witnesses from Barnes, Inc. After some discussion as to the Trades Council’s authority to initiate such a subpoena, the Assistant Attorney General decided that "as a party of interest, they [the Trades Council] have a right to subpoena themselves, so if they make a request for subpoenas, they will be issued by the Commissioner, and as such, they will be honored. So it’s not a question of whether the State is doing it.” The examiner then concluded that such evidence as the Trades Council desired to present would be deemed "part of the Commissioner’s case,” and that, as a result, "the State hasn’t completed its case.” The hearing was then recessed.

On November 24, 1978, the Commissioner issued identical subpoenas to appellants, Barnes, Inc. and its president J. Gordon Barnes, directing them to appear at the continued hearing on December 6, 1978, and to bring with them virtually all writings and documents pertaining to the two construction projects. Each subpoena stated that its recipient was being called "to testify as a witness ... at the request of the ITrades Council].”

Appellants made no move to quash these subpoenas. At the appointed time, their counsel appeared, requested (and received) permission to call a witness "out of turn,” and proceeded to examine that witness. Counsel then announced that neither of the appellants intended to comply with the subpoenas, upon the advice of counsel, because (1) they were improperly issued, and (2) they were overbroad. The gravamen of the first objection was that the subpoenas were issued solely at the behest of the unions, who were not "interested persons” and were therefore not entitled to participate in the proceeding, rather than for any legitimate purpose of the Commissioner. The second complaint was that the subpoenas sought records that were irrelevant, non-existent, or already in the Commissioner’s possession.

Faced with this circumstance, the Commissioner petitioned the Circuit Court for an order compelling compliance with the subpoenas. Over appellant’s objection, the unions were permitted to intervene in the Circuit Court action. After a non-evidentiary hearing, the court directed appellants to comply with the subpoenas, and this appeal followed.

We turn now to the issues, as we see them.

I. Jurisdiction

There is an underlying question in this appeal, of jurisdictional dimension, that none of the parties has raised: Is an order enforcing an administrative subpoena, in an action brought solely for that purpose, a final judgment from which an appeal will lie under Md. Ann. Code, Courts article, § 12-301? The Maryland appellate courts have, in fact, entertained such appeals (see, for example, Equitable Tr. v. State of Md. Comm’n, 42 Md. App. 53, rev’d 280 Md. 80 (1980); but it does not appear that they have ever considered and discussed their jurisdiction to do so. It is, perhaps, time that the question be addressed and resolved.

Based largely upon clear pronouncements from the United States Supreme Court and a number of the Federal Courts of Appeals, we conclude that the order before us is in the nature of a final, and thus appealable, order. The reason for this, as expressed by Mr. Justice Holmes in Ellis v. Int. Com. Comm., 237 U.S. 434, 442 (1915), is that "[i]t is the end of a proceeding begun against the witness.” In that proceeding, there is nothing further for the court to do, nothing further to be litigated.

II. Intervention in the Circuit Court Proceeding

Intervention in judicial proceedings is governed by Maryland Rule 208. Section a thereof permits intervention as of right "when the representation of the appellant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.” Section b allows intervention, discretionarily, when the applicant’s claim or defense "has a question of law or fact in common with the action.”

Here, of course, the sole issue was whether appellants should be compelled to comply with the Commissioner’s subpoenas. As noted, the subpoenas were issued at the request and on behalf of the unions, and the unions would be the principal beneficiaries of their fruits. In this circumstance, at the very least, their claim was in common with the Commissioner’s action; and we therefore cannot conclude that the court abused its discretion in permitting intervention under section b. We need not, therefore, consider whether they had a right to intervene under section a.

III. Status of the Unions at the Administrative Proceeding

Appellants do not challenge the Commissioner’s authority to issue subpoenas of this type; that is specifically provided by § 101(c) of art. 100. The thrust of their complaint, aside from the breadth of the subpoenas, is that, in issuing them, the Commissioner was not acting on his own behalf but rather as a mere conduit for the unions, who had no legal standing in the proceeding. The records sought, they contend, were not needed or wanted as evidence by or for the Commissioner, but as evidence for other persons (the unions) who had no right to present evidence.

The Commissioner conceded at oral argument that he had indeed concluded his case prior to the unions’ request, that he had no need or desire for the records sought by the unions, and that the subpoenas were issued solely at the request and for the benefit of the unions. Both he and the unions further conceded that, in that circumstance, the validity of the subpoenas vel non depends upon whether the unions were lawfully entitled to participate in the proceeding — whether, in other words, they were "interested persons.” The real point of dispute between the parties, in this regard, is whether the unions qualify as "interested persons”; this is the core issue and therefore must be addressed and resolved by us.

A. Definition "Interested Person”

Article 100, § 101 (c) permits "interested persons” to participate in compliance proceedings under the PWL, but does not define the term. Logically, then, in order to determine whether the unions were properly allowed to initiate these subpoenas, we must first define what the law means by "interested persons” and then see if, as to that type of proceeding, the unions qualify for that status.

In Hyson v. Montgomery County, 242 Md. 55, 69 (1966), a zoning case, the Court defined "interested persons” as "the same class of persons who can qualify as 'aggrieved persons’ under our decisions relative to qualifications to be entitled to appeal,” which would seem to require an "interest or right of property” in the pending matter. See Pattison v. Corby, 226 Md. 97, 101 (1961), also a zoning case.

The requirement of a "property” interest may be suitable to zoning proceedings, which peculiarly affect property; but it seems to be unduly restrictive, and we think unintended by the Court of Appeals, in the context of other types of administrative proceedings where "property” rights, in the classic sense, may not be involved. Analogous considerations would also suggest the inappropriateness of blindly applying the criteria precisely as set forth in Maryland Rule 208, governing intervention in judicial proceedings, although some aspects of those standards are not entirely inapposite.

From an amalgam of the concepts laid down in Maryland Rule 208, the few pronouncements in relevant judicial decisions, and what appears to be the manner in which courts have actually dealt with situations of this type, we would define an "interested person,” for purposes of intervention in administrative proceedings of the sort involved here, as one who would be directly affected by the outcome of the proceeding in a different and more substantial way than would the public in general. See Pattison v. Corby, supra, at 101 and cases cited therein; City of San Antonio v. C.A.B., 374 F.2d 326, 332 (D.C. Cir. 1967).

B. Statutory Framework

Having defined the term, we now look to see whether the unions possess the requisite interest. This, of course, requires some understanding of the PWL itself — its purpose and the manner in which it is administered.

Prevailing wage laws, of one type or another, have been around for nearly 90 years, and are currently in effect in 41 States. Most of these enactments, particularly the later ones like Maryland’s, were patterned after the Federal Davis-Bacon Act (Title 40, U.S.C., § 276a, et seq.), first passed by Congress in 1931; indeed, they are often referred to as "Little Davis-Bacon Acts.” The original purpose of these laws — particularly Davis-Bacon — was to protect local contractors and workmen against what was deemed to be unfair and predatory competition from outsiders who, by importing cheap migratory labor, could obtain important public works contracts by underbidding contractors located in the community where the project was to be built. The direct effect of that type of competition, of course, was to place local contractors, having permanent ties to the community, at a competitive disadvantage and thus to deny employment on public projects to the "home town” workmen. An equally significant secondary effect was to destabilize wage rates generally prevailing in the locally based construction industry. In all these respects, such practices necessarily engendered a great deal of labor unrest. At a time when public projects dominated total construction spending, and unemployment in the construction industry was especially high, the need for remedial action by government was apparent; and both labor and industry initially supported this type of legislation, at least at the Federal level.

Circumstances have, of course, changed since these earlier enactments, yet States, throughout the 1950’s and 1960’s continued to adopt these laws, even in light of the new and different economic conditions. The common rationale of these statutes, including that of Maryland, seems to be one of wage stabilization — to assure that wage rates generally prevailing in the construction industry in particular areas are not adversely affected by major public works projects undertaken in those areas. By requiring contractors engaged in public construction to pay at least the same wage rates they would be expected to pay if engaged in non-public construction in the same community, the Legislature has endeavored to avoid unnecessary labor unrest that might especially affect public projects and delay their efficient completion. Viewpoints differ, of course, as to the efficacy and fairness of these laws, but that does seem to be their asserted purjpose and function.

Once a project is determined to be subject to PWL, there is, under the Maryland statute, a tripartite framework for achieving those goals, to wit: (1) requiring the

Commissioner of Labor and Industry "to determine the prevailing rates of wages for workmen and apprentices for the class or type of work called for by the public works, in the locality the work is to be performed”; (2) requiring the contractor on public works projects to pay its employees at least those determined prevailing rates by making them a part of the contract specifications; and (3) providing a post-determination mechanism for assuring compliance by the contractor.

The first and third aspects of this process involve administration action; the second is virtually automatic.

The determination of what the prevailing rates are for each job classification is obviously a matter of extreme importance to both labor and management (not to mention the public, who ends up paying the cost of the project); and, because such determinations will have an influence generally throughout the construction industry, their interest extends beyond any particular public works project. In recognition of that pervading interest, the law requires that these groups, among others, have a reasonable opportunity to provide "input” into the Commissioner’s determinations.

In making his initial determination, the Commissioner examines collective bargaining agreements, payroll data, and other information supplied by "contractors, contractors’ associations, labor organizations, public officials, and other interested parties.” COMAR 09.12.51.06B. Through this process, there is afforded an opportunity for pre-determination "input.” Once the Commissioner makes his initial determination, he is required to give notice thereof "to any representative of any classification, any employer, or any representative of any group of employers who in writing requests the Commissioner so to do.” Md. Ann. Code art. 100, § 98 (a).

Any of these persons or groups may, by verified petition, request a review of the determinations; and, upon such a petition, the Commissioner is required to institute an investigation and conduct a "public hearing.” (§ 99(a)) He must give notice of this hearing "to the petitioner, the public body authorizing the public work, and the recognized collective bargaining representatives for the particular classifications involved, and also to all persons entitled to receive notice pursuant to [§ 98(a)]... .” (Emphasis supplied.) (Id.) At this hearing, the Commissioner offers the basis for his initial determinations and the results of his investigation. Thereafter, says § 99(a), "[t]he Commissioner or any interested parties . . . may introduce any evidence that is material to the issues.” (Emphasis supplied.) There is no statutory right of further administrative or judicial review of the ultimate determinations.

Appellants concede that labor organizations representing workmen in the construction trades qualify as "interested parties” for purposes of proceedings under §§98 and 99 — i.e., with respect to the determination of the prevailing wage rates. As to this, they agree, the unions have an obvious and direct interest; and the law clearly recognizes it by specifically including them among the groups entitled to notice and to file a review petition.

But with respect to compliance proceedings, they say, a labor organization is not an "interested person” and therefore has no right to participate unless it represents the employees directly affected. We agree.

Compliance and enforcement procedures are set forth in §§ 100-105 of art. 100. Section 100 (a) requires that notice of the prevailing hourly wage rates be continuously and conspicuously posted at the job site, in order that the workers themselves can police their employer. In addition, §100 (d) requires the contractor to submit to the Commissioner a complete copy of its payroll records and those of each of its subcontractors. These records must be submitted within 14 days after the end of each payroll period, and are to "be available for inspection during regular business hours.” See § 100 (d); also COMAR 09.12.51.01. The contractor is obliged to certify that the records are accurate, including, among other things, a certification "that the classification set forth for each workman or apprentice conforms with the work he performed....” § 100 (d).

Section 101 (a) empowers the Commissioner to cause investigations to be made to assure compliance with the law. He may do this on his own, and need not wait for a complaint. In part, this is done by having his staff audit the payroll records submitted to him, and compare them with the various classifications and wage rate determinations initially established for the job. If, upon completion of an investigation, the Commissioner determines that a violation may have occurred, he must (1) notify the public agency — the contracting authority — which is then required to withhold sufficient sums from the contractor to satisfy the deficiency, and (2) schedule a hearing. It is such a hearing that is at issue here.

Section 101 (c) directs the Commissioner to give notice of the hearing to "all interested persons, including the interested public body.” At the hearing, "|e]very interested person shall have an opportunity to be heard in respect to the matters complained of.. . .” Id. Specifically, any "party of interest” may (1) "introduce testimony or other evidence in rebuttal or of an affirmative nature,” (2) "directly or through his attorney make any statement or argument relevant to the hearing,” and (3) through counsel, "be heard on any preliminary objections, exceptions, or motions...COMAR 09.12.51.05. The Commissioner,, in conducting the investigation and hearing, is "deemed to be acting in a judicial capacity and shall have the right to issue subpoenas, administer oaths, and examine witnesses.”

Upon completion of the hearing, the Commissioner must determine the issues before him. If he finds a violation, the law provides several avenues for redress.

C. Discussion

There is no doubt that the unions have an interest in seeing that the PWL is adequately enforced — that it is not circumvented either directly or by the more subtle type of activity alleged in this case. We accept even that their interest in aggressive enforcement is a shade above that of the general public. But that interest nevertheless remains a general and indirect one, quite different and far less substantial than would be involved if they represented any of the employees whose rights were allegedly violated.

The Commissioner and the unions, upon the premise that all parts of the statute should be read together, contend that whoever is entitled to notice of wage determinations under § 98 (a) would be an "interested party” under § 101 (c). There is no substance to that argument, however, either as a matter of statutory construction or as a matter of simple logic. Section 99 (a), in stating who is entitled to notice of wage determination hearings, specifically mentions "recognized collective bargaining representatives” for the classifications involved as well as "all persons entitled to receive notice pursuant to [§ 98 (a)].” Section 101 (c) contains no such reference, however, which, if anything, would indicate an intent contrary to the position espoused by appellees.

Moreover, such a construction could lead to absurd results because it ignores the very different nature of the two types of proceedings. Any employer who makes a written request is entitled to notice under § 98 (a); this is because "any employer” may wish to bid on the public contract and would therefore have a direct and substantial interest in the Commissioner’s prevailing wage rate determinations. But that would not, it seems to us, give Employer A, who did not get the contract, or perhaps did not even bid on it, the right to intervene in a compliance proceeding involving his competitor, Employer B, who did get the contract. Yet that is precisely the result that would follow from this line of argument. If the unions are entitled to subpoena all of Barnes, Inc.’s records simply because they were entitled to notice under § 98(a), it would seem that all of Barnes, Inc.’s competitors would have the same right. We see no evidence that the statute was intended to be read in that manner.

To our knowledge, there is no decisional authority directly relevant to the issue before us. A number of courts around the country have considered a union’s standing under prevailing wage laws, but valid distinctions of one type or another can be found in each of those cases.

The unions direct us to Denver Bldg. & Const. Trades Council v. Vail, 86 P.2d 267 (Colo. 1938), El Paso Bldg. & Con. Tr. Council v. Texas Highway Com’n, 231 S.W.2d 533 (Tex. Civ. App. 1950), and International U. of Operating Eng., Local 627 v. Arthurs, supra, 355 F. Supp. 7 (W.D. Okla.), aff'd 480 F.2d 603 (10th Cir. 1973), as supporting their claimed status as "interested persons”; however, none of those cases concerned enforcement proceedings against a particular contractor. Each case involved an attempt by a construction union or trade council to enjoin the letting of a public contract on the ground that the prevailing wage determinations included in the contract specifications were inaccurate. The dispute, in other words, related only to the propriety of the initial prevailing wage rate determinations; and as to that, there is no doubt of a union’s status as an interested person. See also Industrial Commission v. State Federation of Labor, 110 P.2d 253 (Colo. 1941); Carpenters Local No. 1650 v. City of Lexington, 248 S.W.2d 407 (Ky. 1952).

Somewhat closer in point, though still distinguishable, are the cases rejecting attempts by non-representative unions either to enforce prevailing wage laws directly or to initiate enforcement proceedings under them.

In Yerry v. Goodsell, 166 N.Y.S.2d 224 (1957), aff'd 152 N.E.2d 535 (N.Y. 1958), certain construction unions filed a verified complaint with the Comptroller of the City of Kingston charging that the City school board was violating the New York PWL by using its regular maintenance employees to do reconstruction and repair work on public schools and paying them their regular salaries, which were less than the prevailing wage rates for the respective trades. The statute required the Comptroller to initiate an investigation upon verified complaint "of any person interested.” None of the municipal employees involved were represented by the complaining unions, however; and, upon that basis, the Comptroller concluded that the unions were not "persons interested” and declined to make the investigation.

On appeal by the unions, the trial court and both appellate courts affirmed. As to the nature of the unions’ interest in the matter, the intermediate court observed, 166 N.Y.S.2d at 228:

"It was apparently the hope of the [unions] that, if the board were required to classify its employees and to pay the prevailing rate of wages for each class, the board would find it profitable to hire union craftsmen in place of the maintenance employees. That was the extent of the [unions’] interest in the matter. They do not claim to be acting for or on behalf of the employees on the job. On the contrary, it was their aim to have the civil service employees ousted from the work and to have them replaced by union members.”

This was, of course, a direct and significant interest — one personal to the unions and their members, but it was not, said the Court, the type of interest contemplated by the New York statute. The compliance procedure set forth in that law "was not designed to provide a method of enforcing the prevailing rate of wages statute generally; it was adopted solely for the purpose of providing the employees on the job with an effective administrative remedy.” (Emphasis supplied.) 166 N.Y.S.2d at 229. The text of the statute, said the Court at p. 230, "makes it clear that only an employee or a person acting on his behalf is a 'person interested’ entitled to file a complaint____” See also Empire State Chapter, Etc. v. Rome Hous. Auth., 339 N.Y.S.2d 847, 850 (1972).

In International Brotherhood of Electrical Workers v. Board of Harbor Commissioners, 68 C.A.3d 556 (Cal. App. 1977), a union sought a declaration that certain development operations being conducted by private companies on land owned by the City of Long Beach, pursuant to an agreement between the City and the companies, were subject to the prevailing wage law. It appears from the Court’s Opinion that the union did not represent any of the employees on the job. Although the Court decided the case (by dismissing the action) on the ground that the development agreement was not a "public work,” it also made clear that the union had no standing to enforce the prevailing wage requirement even if the project was a public work. At p. 563, the Court observed:

"We recognize that the statute imposes a duty on the city and on the contractor to enforce the rights of the workmen, but the present suit is not one in which that duty may be enforced. Plaintiff sues only on behalf of its members — persons who, under the allegation of the complaint, are not persons employed at the less than prevailing wage....”

A similar conclusion was reached by the Wisconsin Court in Chauffeurs, Etc., Local No. 200 v. Wis. Emp. Rel. Comm., 187 N.W.2d 364 (Wisc. 1971). The State Highway Commission contracted with a wrecking company (Gerovac) to do work on a State highway. A union, representing none of Gerovac’s employees, picketed the site and filed an unfair labor practice charge with the State Employment Relations Commission, alleging that Gerovac was paying less than the prevailing wage rates. Violation of the Wisconsin PWL constituted a misdemeanor, and the basis of the unfair labor practice charge was that Gerovac was committing a misdemeanor "in connection with any controversy as to employment relations.”

Wisconsin did not, at that time at least, provide an administrative enforcement mechanism in its PWL, as does Maryland. Rather, it sought to assure compliance through criminal sanctions and private court actions by directly affected employees. Because the complaining union did not represent any of these employees, however, it was held to have no standing to enforce the PWL. In reaching this conclusion, the Court acknowledged the union’s "interest in Gerovac’s employment practices” as well as its concern with "effectuating the purpose of the prevailing wage law” (see 187 N.W.2d at 369 and 370); but, given the other enforcement mechanisms provided by the PWL, it agreed with the Employment Relations Commission that the union was simply not a "party in interest.”

Appellees seek to distinguish these cases on the basis that they all involved attempts at direct enforcement action rather than mere participation in a proceeding brought by the public official primarily charged with enforcement. That distinction does not exist, however, under the facts of this case. Given the concessions noted, what is before us, quite plainly, is an attempt by the unions to enforce the PWL on their own, collaterally to the efforts made by the Commissioner. But in making that effort, the unions were not acting on behalf of the employees directly affected by the proceeding. To them, the unions were legal and economic strangers; and for that reason, the general rationale applied in these cases would appear to be applicable.

Our conclusion, however, is not based upon this somewhat tenuous line of out-of-State cases, but rather upon our analysis of the Maryland statute. We do see a significant difference between wage rate determination proceedings under §§98 and 99 and specific compliance proceedings under § 101 (c). The former, as noted, has broad economic implications for many different groups and entities; the latter is for the particular benefit of the employees directly affected — those allegedly being paid less than the law requires. The sole purpose of a § 101 (c) proceeding is to secure to those employees working on the public project the wages to which they are entitled.

In this regard, there is another distinction to be drawn. When a union actually represents the employees involved, its interest in a compliance proceeding is primarily a derivative one; it is the employees’ interest being represented and asserted, not that of the union itself. The union thus assumes, vicariously, the status of the employees themselves; that is what would make it, under that circumstance, an "interested person.” This, of course, is not true where the union does not represent the affected employees. In that instance, the interest being asserted by the union is purely a personal one of its own. That interest may or may not be consistent with the interest of the employees on the job, depending upon the overall circumstances of the case; but regardless, the union, in that situation, is a complete stranger to the parties, to the transaction, and to the object of the proceeding.

For these reasons, we find that the Commissioner and the Circuit Court erred in deeming the unions to be "interested persons” in the administrative proceeding. They had no right to participate in the proceeding, no right to initiate the subpoenas, and no right to the records sought by the subpoenas. Accordingly, under the facts before us, we conclude that the subpoenas were improperly issued and for that reason are invalid. In light of this conclusion, we need not address the question of overbreadth.

Order reversed; case remanded to Circuit Court for Baltimore County for entry of order dismissing petition to enforce subpoenas; appellees to pay the costs.

      . See Demory Bros. v. Bd. of Pub. Works, 273 Md. 320 (1974).

      . See COMAR 09.12.51.05, authorizing the designation of a hearing examiner.

      . See Ellis v. Int. Com. Comm., 237 U.S. 434 (1915); Reisman v. Caplin, 375 U.S. 440, 449 (1964); O’Connor v. O’Connell, 253 F.2d 365 (1st Cir. 1958); United States v. McDonald, 313 F.2d 832 (2d Cir. 1963); FTC v. Texaco, 517 F.2d 137 (D.C. Cir. 1975); Sale v. United States, 228 F.2d 682 (8th Cir. 1956), cert. den. 350 U.S. 1006; cf. Cobbledick v. United States, 309 U.S. 323 (1940); Brown v. Braddick, 595 F.2d 961 (5th Cir. 1979); Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968); Ochsner v. Millis, 382 F.2d 618 (6th Cir. 1967). But compare Thomas French & Sons v. International Braid Co., 146 F.2d 735 (1st Cir. 1945); Shattuck v. Hoegl, 523 F.2d 509 (2d Cir. 1975). Also 3 Mezines, Stein, Griff, Administrative Law, § 21.02[lj.

      . The unions suggest that the question of their intervention in the administrative proceeding is premature, and ought not be addressed in this appeal, because (1) the administrative proceeding is not over and (2) the Commissioner can countermand the decision of his hearing examiner. We find no merit in that argument. For one thing, it is the subpoenas that are primarily at issue here and it was the Commissioner (not the hearing examiner) who issued them and brought this proceeding to enforce them. Moreover, even were the Commissioner, at some future point, to decide that he (and his examiner) had acted in error, that would be of small comfort to appellants if, in obedience to the court order, they had already produced the records.

      . We are aware of a growing trend toward allowing intervention in administrative hearings by “public interest” organizations purporting to represent the public at large. See Davis, Administrative Law of the Seventies, § 8.11 (1976); Minn. Public Interest v. Minn. Dept. of Labor, 249 N.W.2d 437 (Minn. 1976). We express no opinion on that question, as the unions here have not claimed the status of "interested persons” by virtue of being public interest groups or as representatives of the public generally.

      . The background and legislative history of the Davis-Bacon Act are set forth in Senate Report No. 1445, 71st Congress, 3d Session, Jan. 26,1931. See also Davis-Bacon Legislation, Committee Print, Senate Committee on Banking, Housing, and Urban Affairs, 96th Congress, 1st Session, May 2, 1979; Senate Report 963 on HR 6041, U.S. Code Congr. and Admve. News, 88th Congress, 2d Session (1964), p. 2340; Legislative History of the Davis-Bacon Act, Committee Print, House Committee on Education and Labor, 87th Congress, 2d Session, Sept., 1962; International U. of Operating Eng., Local 627 v. Arthurs, 355 F.Supp. 7 (W.D. Okla.) aff'd 480 F.2d 603 (10th Cir. 1973); Prevailing Wage Determinations in the Construction Industry: Some Legal Aspects, Wm. S. Tyson, 1952 Wisc. L. Rev. 440 (1952).

      . Eighteen States adopted these laws during the 1930’s, three during the 1940’s, five during the 1950’s, eight during the 1960’s, and one in 1973. Six States had adopted prevailing wage laws in or before 1914. Maryland first adopted a prevailing wage law in 1945 (see Laws of Md., 1945, ch. 999), but it applied only to road construction projects in Washington, Allegany, and Garrett Counties. See Md. Ann. Code art. 89B, § 25 (1964 Repl. Vol. and 1965 Supplement). The current law was enacted in 1969 (Laws of Md., 1969, ch. 558), and was substantially amended in 1970 (Laws of Md., 1970, ch. 293).

      . Significant efforts have been made in Congress to repeal the Davis-Bacon Act on the grounds that it is inflationary, cumbersome and has outlived its original purpose. See Davis-Bacon Legislation, supra, note 6; also, Administration of the Davis-Bacon Act, House Committee on Education and Labor, 87th Congress, 2d Session (1962).

      . Md. Ann. Code art. 100, § 98 (a).

      . One of the few areas of substantial difference among the various State and Federal prevailing wage laws concerns the enforcement mechanism. Some laws rely primarily on criminal sanctions, economic sanctions ("debarment” from further public contracts), or private enforcement actions in court by the employees allegedly being "short-changed”; others rely equally, or more, on administrative enforcement. Hereafter, we shall deal with the Maryland approach.

      11. We shall read this as "quasi-judicial capacity,” as we do not believe that the General Assembly intended a violation of Article 8 of the Maryland Declaration of Rights (Separation of Powers).

      . Section 101 (d) directs the public agency to pay the workers directly from sums withheld from the contractor pursuant to § 101 (b). In addition, § 102 authorizes direct legal action by the workers against their employer to recover the underpayment. Section 98 (b) requires the contractor’s bond to guarantee "the faithful performance of the prevailing hourly wage clause.” Apart from these direct methods of enforcement, the law also imposes economic sanctions against noncomplying employers. Section 97 (b) provides for "liquidated damages” to the public agency at the rate of $10 a day for each employee underpaid. If the Commissioner finds that a contractor has ''persistently and willfully” violated the law, he must notify the Secretary of State thereof and for one year thereafter the contractor is ineligible "from contracting directly or indirectly with any public body for the construction of any public works....” See § 104 (c).

      . It is important to note that this conclusion was based upon a construction of the New York statute, which was somewhat different than the Maryland law. Under the New York procedure, the verified complaint triggered an investigation and hearing, and the product of that was a "determination” set forth in an order. If the determination was favorable to "the complainant,” he "or any other person affected” could sue in court to recover the difference between the wage actually paid and that which should have been paid "as determined by said final order.” Looking at this procedure as a continuum, the Court concluded that only a person entitled to sue at law for the wage deficiency qualified as a "person interested” entitled to file a verified complaint, and that this was limited to the employees directly involved or their representative.


author: Weant, J.,

text:
    GERALD DAVIS FULLER v. STATE OF MARYLAND
    [No. 1027,
    September Term, 1979.]

      Decided April 16, 1980.

    The cause was argued before Lowe, Couch and Weant, JJ.

      Lee Gordon, Assigned Public Defender, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Mark P. Cohen, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Weant, J.,

delivered the opinion of the Court.

On 12 July 1979 a jury in the Criminal Court of Baltimore (Murphy, J.) found the appellant, Gerald Davis Fuller, guilty of the first degree murder of his wife. The appellant’s motion for a new trial was denied on 16 August 1979, and four days later he was committed to the custody of the Commissioner of Correction for the balance of his natural life. In noting a timely appeal to this Court, Mr. Fuller requests that we consider two contentions:

I. The trial judge committed reversible error in failing to grant a judgment of acquittal for first degree murder for the reason that the evidence adduced at trial was insufficient to support such a finding.
II. The trial judge abused his discretion in failing to keep prejudicial photographs of the victim’s fatal wounds from being introduced as evidence at trial.

I.

—the law—

Initially we note that Mr. Fuller’s appellate argument does not challenge the sufficiency of the evidence as to the jury’s findings of the actus reus of homicide or his criminal agency, rather its focus of attack is much narrower, i.e., whether or not there was sufficient evidence to convince the jury beyond a reasonable doubt that the appellant murdered his wife wilfully, deliberately, and with premeditation. Stated most precisely, Mr. Fuller insists that we should lay to rest "the notion that the brutality of the murder act may — in and of itself — provide sufficient evidence to convict for first degree murder.” Making such a determination would necessitate our rejecting Kier v. State, 216 Md. 513, 523, 140 A.2d 896, 900 (1958), wherein the Court of Appeals stated:

The brutal manner in which the victim was beaten about the face and head with these or other objects indicates a protracted period during which the assault continued. Then the assailant procured or produced a butcher knife which he plunged into her body not once but twice. There was ample evidence to justify the trial court in its conclusion that the action of the appellant was wilful, that it was deliberate, and that it was premeditated.
The court is irresistibly driven to the conclusion that there was sufficient evidence to justify the trial court in arriving at its verdict of murder in the first degree.

The holding in Kier is derived from an earlier Court of Appeals decision, Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953). There the Court held that

"[i]n order to justify a conviction of murder in the first degree,... the jury must find the actual intent, the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate offspring of rashness and impetuous temper and that the mind has become fully conscious of its own design.”

Id. at 106, 95 A.2d at 586, quoting Hochheimer (1904 ed.), section 347, page 380. The Court, still citing Hochheimer, then indicated that

[i]t is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. Webb v. State, [201 Md. 158, 93 A.2d 80 (1952)]. The Court of Appeals of New York, in Leighton v. People, 88 N.Y. 117, 120, put it in this wise: "If, therefore, the killing is not the instant effect of impulse, if there is hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.” The same ruling is made in People v. Majone, 91 N.Y. 211, 212: "Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is.” It is generally established and certainly is necessarily the law of Maryland, where the jury is the judge of the law and the facts, that where there is evidence to go to the jury, whether or not there was malice, wilfullness, deliberation and premeditation must be for the jury to determine. Warren on Homicide, Vol. 3, Sec. 307; and Jones v. State, 188 Md. 263, 272, 52 A.2d 484 [(1947)]. Shelton v. State, [198 Md. 405, 84 A.2d 76 (1951)].
Chisley, 202 Md. at 106-07, 95 A.2d at 586. Finally, in ruling that the evidence before the jury was sufficient to sustain a first degree murder conviction, the Chisley Court made the following determination at page 108, 95 A.2d at 586-87:
There was evidence, in our opinion, which the jury could properly consider in determining whether there was intent to kill and deliberation and premeditation. The shooting was preceded by the discussion, brief as it was, about the ownership of the cigarettes. The jury could find that two or more shots were fired and that there was an appreciable interval between the first shot and the second, or more, and that the second was fired as Contee lay on the ground; the firing of two or more shots in such circumstances has been held by the Courts to be evidence for the jury of deliberation and premeditation. State v. McNamara, 116 N.J.L. 497, 184 A. 797, 185 A. 479; People v. Harris, 209 N.Y. 70, 102 N.E. 546; Commonwealth v. Dreher, 274 Pa. 325, 118 A. 215; and Brown v. State, 62 N.J.L. 666, 42 A. 811.

Chisley was thereafter cited for the proposition that where there was an interval between the first and final acts constituting the murder, there was sufficient evidence of deliberation and premeditation. Wilson v. State, 261 Md. 551, 565, 276 A.2d 214, 221 (1971); Cummings v. State, 223 Md. 606, 612, 165 A.2d 886, 889 (1960), cert. denied, 366 U.S. 922, 81 S. Ct. 1098, 6 L. Ed. 2d 243 (1961); Robeson v. State, 39 Md. App. 365, 381, 386 A.2d 795, 803 (1978), aff'd on other grounds, 285 Md. 498, 403 A.2d 1221 (1979).

That Chisley continues to stand for the proposition that the interval between the first and final acts constituting murder is sufficient evidence of the mental state necessary to establish murder in the first degree becomes clearer in the light of our recent decision, Smith v. State, 41 Md. App. 277, 398 A.2d 426 (1979). In Smith, we once more addressed the question of whether or not the evidence was legally sufficient to permit the case to go to the jury on the issue of first degree murder. In the course of his response, Judge Moylan re-examined Chisley so that he might answer the following queries:

Do the three adjectives "wilful,” "deliberate” and "premeditated” describe three distinct aspects of the mental state we are searching for [i.e., intent to kill] or are they, as a rhetorical device for purposes of emphasis, simply three synonyms for the same mental state? Do the second and third adjectives add anything whatsoever to the first? Can there be "a specific purpose and design to kill” without "a full and conscious knowledge of the purpose to kill”? How does one have purpose without being conscious of that purpose? To wit, can an act be "wilful” and not "deliberate”? By the same token, does the third adjective add anything to the second? How can one be "deliberate” without having had "time enough to be deliberate”? How can one do a thing (even a mental thing) without having had time to do it? Is the adjectival trinity aught but a literary flourish?

Id. at 300, 398 A.2d at 440. The conclusion reached is best summarized by Chief Judge Gilbert’s statement in Brown v. State, 44 Md. App. 71, 410 A.2d 17 (1979), at page 22: "The trilogy of terms connotes the same general idea — the intention to kill. The use of all three words would seem to us to serve no purpose other than to shroud the intention in an aura of redundancy so as to convey the seriousness of the matter.” (Citation omitted).

Because the time lapse between acts is "evidence for the jury of deliberation and premeditation,” Chisley, 202 Md. at 108, 95 A. 2d at 587, it is also evidence for the jury of wilfulness, deliberation, and premeditation, i.e., evidence for the jury of murder in the first degree. Brown, 44 Md. App. at 78, 410 A.2d at 22. We are not free to accept Fuller’s invitation to abandon Kier. If however, we were at liberty to do so we would, nevertheless reaffirm the principles announced therein.

— the facts —

That the victim, Karen Lee Fuller, was brutally murdered can hardly be disputed. Dr. Thomas Smith, Deputy Chief Medical Examiner for the State of Maryland, testified that Karen Fuller had sustained fifty stab wound injuries. Unable to establish which particular thrust of the knife precipitated the victim’s demise, Dr. Smith stated that "[t]he cause of death was multiple stab wounds.” Apart from "the most medically serious” wounds, i.e., those which "damaged the heart and both lungs,” there were numerous other "widely distributed” wounds, e.g., "on the top of the head — on the left and right side of the head,” "some on the left side of the face,” "a few in the front of the neck,” "a cluster of approximately nine or ten wounds” "in the back between the shoulder blades,” "several on the forearms and the hand regions,” and "some even down on the legs.”

As was true in Kier, it is obvious that the victim in the instant case was the object of a protracted and brutal assault. Therefore, we also are "irresistibly driven to the conclusion” that there was sufficient evidence to justify the trial judge’s refusing to grant a judgment of acquittal for first degree murder.

II.

As this Court stated in Meyer v. State, 43 Md. App. 42 406 A.2d 427, 437 (1979)

The admission of photographs is within the discretion of the trial court, and its determination will not be disturbed on appeal unless it clearly abused its discretion in admitting them. Carroll v. State, 11 Md. App. 412, 414-15, 274 A.2d 677, 678-79 (1971). See Rasnick v. State, 7 Md. App. 564, 569-70, 256 A.2d 543, 546 (1969), cert. denied, 400 U.S. 835, 91 S. Ct. 70, 27 L. Ed. 2d 67 (1970); McLaughlin v. State, 3 Md. App. 515, 523, 240 A.2d 298, 303 (1967). See also Clarke v. State, 238 Md. 11, 207 A.2d 456 (1965).

A review of the record in the case subjudice establishes that Judge Murphy did not abuse his discretion in admitting into evidence the autopsy photographs depicting the victim’s wounds. In ruling on the photographs’s admissibility, he stated: "I think that I would allow them in because this might be of some assistance in determining degree.” In the light of our discussion in section I, we are unable to say that Judge Murphy abused his discretion in the instant case.

Judgment affirmed.

Costs to be paid by appellant.

      . Md. Ann. Code art. 27, § 407 states: "All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.”