author: Couch, J.,

text:
    THEODORE RUSSELL LOGAN v. STATE OF MARYLAND
    [No. 678,
    September Term, 1979.]

      Decided February 13, 1980.

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

      Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and William T. Shockley, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

The appellant, Theodore Russell Logan, was charged with daytime housebreaking and larceny and was found guilty of these charges by a jury in the Circuit Court for Prince George’s County. He was sentenced to eight years incarceration for the housebreaking conviction and a consecutive eighteen months sentence on the larceny conviction. By this appeal appellant presents three questions as follows:

"1. Did the trial court err by admitting a self-incriminating statement obtained from Appellant in violation of Maryland District Rule 723?
2. Did the trial court err by denying Appellant’s motion for a mistrial?
3. Did the trial court err, at sentencing, by considering allegations of other crimes committed by Appellant, which evidence resulted from illegal activities by police?”

In view of the particular issues raised here, only a brief resume of the factual background is necessary. Pertinent facts will be supplied in our discussion of each issue.

Two residents of an apartment in Adelphi, Maryland left it on November 15,1978 after double locking the front door and the patio sliding glass door. Upon their return they discovered that one of the front door locks was unlocked and the door closed; the patio door was still secured. An inspection of the apartment revealed a television set and a stereo set had been removed.

A warrant for appellant’s arrest was obtained by the police after a witness stated he had seen appellant leaving the apartment house around the time the theft must have occurred, and a juvenile, who had been arrested for the same offense, stated that appellant was involved. Appellant, upon learning of the warrant, surrendered himself to the police. Appellant’s admissions to the police following his arrest, one event at trial, and a complaint about sentencing form the basis for this appeal.

(1)

The Maryland District Rules (723 a) provide:

"a. After Arrest.
A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than the earlier of (1) 24 hours after arrest or (2) the first session of court after the defendant’s arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed. A charging document shall be filed promptly after arrest if not already filed.”

Appellant claims this rule was violated because he was not taken before a judicial officer for some eight hours after his arrest and thus the court erred in not suppressing an inculpatory statement he gave to the police during this "delay”. The appellee argues, and we agree, that regardless of any error that might otherwise have been present in this regard, appellant cannot complain because he voluntarily waived his 723 a right to a prompt presentment before a judicial officer.

The record amply demonstrates that in conjunction with appellant’s waiver, in writing, of his several Miranda rights, he affirmatively waived his 723 a right. Immediately following appellant’s arrest he was read a "Waiver of Rights Form” which included a waiver of each right under M.D.R. 723 a. He initialed the particular section pertaining to the waiver of prompt presentment and answered "yes”, in writing, on the line after the following question, "Do you waive your right to an immediate initial appearance and agree to delay the appearance until the completion of this interview?” He also indicated that he understood the rights which were explained to him. It is therefore apparent that the appellant knowingly and intelligently waived his right to a prompt presentment under M.D.R. 723 a and may not now complain of a loss of that right. See Johnson v. State, 282 Md. 314, 332, 384 A.2d 709 (1978); State v. McKay, 280 Md. 558, 572-74, 375 A.2d 228 (1977).

(2)

The question of whether the trial court erred by denying appellant’s motion for a mistrial arose because the trial judge agreed to allow the jury to determine if there had been compliance with M.D.R. 723 a. Appellee, having been told the jury would be allowed to determine whether M.D.R. 723 a had been violated, desired to produce testimony to explain the delay in presenting appellant to a judicial officer. Appellee was allowed, over objection, to show that the investigating officers were investigating some sixty breaking and entering cases and asked appellant about his possible involvement. There was no testimony given with reference to any other offenses, only the bald statement that appellant was questioned about his possible involvement. The record reveals that on each occasion when a reference was made to the other breaking and entering investigations, the trial judge explained to the jury his reason for allowing this testimony, i.e., for the limited purpose of explaining the time delay in presenting appellant to a judicial officer, and cautioned them not to consider any other possible offenses in determining appellant’s guilt or innocence of the breaking and entering for which he was being tried. These admonitions were restated in the trial judge’s instructions. We are persuaded that if there was error, it was harmless beyond a reasonable doubt. See Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976).

(3)

Appellant finally argues that the trial judge erred when, at the sentencing of appellant, he considered information supplied by appellee that appellant had confessed to other housebreakings after his arrest. He argues that these confessions were the result of an illegal search and thus were tainted since they were the fruit of a poisonous tree and therefore subject to the exclusionary rule. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Appellee concedes that the confessions were tainted and thus could not have been used at trial, but argues that this does not prevent their use at sentencing.

It appears that this precise question has never been considered by an appellate court in Maryland, although several closely related questions have been decided. See Henry v. State, 273 Md. 131, 328 A.2d 293 (1974); Purnell v. State, 241 Md. 582, 217 A.2d 298 (1966); Walker v. State, 186 Md. 440, 47 A.2d 47 (1946); Baker v. State, 3 Md. App. 251, 238 A.2d 561. In Turner v. State, 5 Md. App. 332, 334, 247 A.2d 412 (1968), we stated, in part:

"Since the imposition of sentence is a matter peculiarly within the province of the trial judge, the general rule is that he may inquire into any information pertaining to the defendant in order to give a fair sentence. Gee v. State, 2 Md. App. 61, 68. He may consider the defendant’s entire background, including prior convictions. Miller v. State, supra. See Thomas v. State, 2 Md. App. 645.”

Appellant does not contest this concept but confines his argument to urging us to extend the exclusionary rule to the sentencing phase of a criminal trial.

In United States v. Lee, 540 F.2d 1205 (1976), cert. denied, 429 U.S. 894, the precise question was before the U. S. Court of Appeals for the Fourth Circuit. It stated, in part:

"Most illegally-obtained evidence, however, is not inherently unreliable; it is excluded at trial on the theory that exclusion will deter the making of illegal searches. In order to decide whether illegally-obtained information must be kept from the eyes of the court, we must therefore evaluate the degree of deterrence which might be promoted by exclusion of such evidence at sentencing and weigh that degree of deterrence against the concomitant limitation of the right of the sentencing judge to impose sentence in the light of all relevant facts. United States v. Calandra, supra, 414 U.S. at 349, 94 S. Ct. 613.
We think that if the exclusionary rule were extended to sentencing in the ordinary case, its additional deterrent effect would be so minimal as to be insignificant. Generally, law enforcement officers conduct searches and seize evidence for purposes of prosecution and conviction — not for the purpose of increasing a sentence in a prosecution already pending or one not yet begun. If they are to be deterred from official lawlessness, it would seem obvious that the only effective deterrence is the threat that the prosecution arising out of the specific search and seizure in which they acted illegally would be rendered ineffective. The additional threat that a future sentence might be less severe because they acted unlawfully can be predicted to have little practical effect to accomplish its main objective.”

We concur with this reasoning and adopt it here. Applying these considerations, we conclude that the record supports the view that the inculpatory statements of appellant were obtained by the State for the purposes of prosecution, not for the enhancement of sentence. The suppression of the confessions at trial constitutes a sufficient deterrent against further illegal activity by the police. Under the present circumstances, we conclude that the trial judge did not err in using appellant’s confessions in considering sentence.

Judgments affirmed.

Appellant to pay costs.

      . This version of M.D.R. 723 a was amended, effective July 1,1979, and now reads:
      "a. After arrest.
      A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than 24 hours after arrest. A charging document shall be filed promptly after arrest if not already filed."

      . Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

      . While the propriety of this procedure is not before us, we hasten to add that we believe the matter was for the court to determine, not the jury.


source: Caselaw Access Project

author: Lrss, J.,

license: Public Domain

text:
    LINDA LEE ROOS v. STATE OF MARYLAND
    [No. 684,
    September Term, 1979.]

      Decided February 13, 1980.

    The cause was argued before Liss, MacDaniel and Weant, JJ.

      Cynthia E. Young, with whom was P. Paul Cocoros on the brief, for appellant.

      William H. Kenety, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Prevas, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lrss, J.,

delivered the opinion of the Court.

Linda Lee Roos, appellant, was convicted in a bench trial in the Criminal Court of Baltimore of possession of a sawed-off shotgun in violation of Article 27, Section 481C of the Annotated Code of Maryland (1957, 1976 Repl. Vol., 1979 Cum. Supp.), which became effective July 1,1976. Sentence was imposed, and it is from this judgment that this appeal was filed.

Appellant raises only one issue:

Did the trial court err in convicting appellant where the State failed to prove each and every element of the offense charged in that the State failed to prove that the sawed-off shotgun in appellant’s possession was not registered with the Federal government?

Section 481C sets out certain definitions as to the meaning of "rifle,” "short-barreled shotgun,” "short-barreled rifle” and "shotgun.” It lists exclusions for antique, inoperable, or non-weapon firearms which would otherwise fit the enumerated descriptions, and then provides in Section 481C (b) that, "A person may not possess a short-barreled rifle or short-barreled shotgun unless the person has registered it with the United States government in accordance with United States statutes.” The statute carries with it a penalty clause which includes a provision for a fine and/or imprisonment.

The facts in this case are undisputed. At trial, the State introduced testimony that the appellant possessed the gun at the time of her arrest and that she claimed possession of it at that time. The trial court called as its own witness a Ms. Buckley who testified that she had properly registered the gun at the time she purchased it; that she had given the unaltered shotgun to the appellant; and that the gun had been altered since the transfer of the gun to the appellant. It was stipulated that the barrel of the gun was shorter than the length designated by statute, although the overall length of the gun was greater than the prohibited overall length. On the basis of this evidence appellant was convicted.

The issue raised in this appeal is á novel one in Maryland and there are no prior Maryland appellate decisions pertaining to Section 481C to guide us in our determination. Both appellant and appellee suggest that a comparison of Article 27, Section 481C and Article 27, Section 36B (the handgun statute) will be useful in resolving the issue. Appellant urges, however, that the two sections are substantially different in the approach taken to the prohibited acts embodied in each of the statutes. In the Maryland handgun statute, the separately designated exceptions included in the statute operate to relieve an accused of criminal responsibility for the proscribed acts contained in the provision. Appellant concedes that under the handgun statute the burden is upon the accused to prove himself as being within a particular exception. Jordan v. State, 24 Md. App. 267, 330 A.2d 496 (1975). Appellant contends, however, that under Section 481C the failure to register a sawed-off shotgun with the Federal government is the gravamen of the offense, and that under those circumstances the "burden of proof of non-registration” is upon the State.

Appellant, in support of her position, offers principally the case of United States v. Collier, 381 F.2d 616 (6th Cir. 1967), where the defendant was prosecuted under 26 U.S.C. 5841, 5851 (now 5861) and 5862 (1964) for possession of an unregistered sawed-off shotgun which was transferred to the defendant without the requisite registration. In that case, no certificate from the Secretary of the Treasury establishing non-registration was introduced. In the absence of such proof, an F.B.I. agent testified that the defendant had informed him that he sawed off the gun the night before the robbery during the course of which the defendant was apprehended. The Court rejected this evidence as insufficient to show a failure to register, holding that, "[w]hile this argument certainly has much common sense to commend it, on balance we believe that the National Firearms Act is drafted in technical language and that the burden is on the government to prove all the necessary elements of the crime. Lack of registration is one of these.” Id. at 619. In effect, the Court mandated that the government produce a certificate of non-registration from the Custodian of the National Firearms Registration and Transfer Records in order to sustain a conviction.

Appellant also calls our attention to United States v. Thompson, 518 F.2d 534 (8th Cir. 1975) and United States v. Williams, 446 F.2d 486 (5th Cir. 1971), each of which deals with the possession of a sawed-off shotgun. In each of these cases, the defendants were charged with possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. 5861 (1968) which provides: "It shall be unlawful for any person — (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record....” Evidence was introduced in Williams, supra, in the form of an authenticated certificate from the Custodian of the National Firearms Registration and Transfer Records that the particular sawed-off shotgun was not registered to one of the defendants in this case or to anyone else. The Court held that this was sufficient proof of non-registration to sustain the conviction of the other defendant. In Thompson, supra, a certificate stating that the gun was unregistered was also considered an essential element of the conviction.

The State agrees that if we accept Collier and the other Federal cases cited by the appellant as being binding upon us, it would be dispositive of this case and would require a reversal of appellant’s conviction. Appellee points out, however, that we are not necessarily bound by the rulings of the Federal courts on this issue and suggests that we follow the ruling of our own Court of Appeals in an analogous case involving an interpretation of the Maryland handgun statute.

In Mackall v. State, 283 Md. 100, 387 A.2d 762 (1978), the Court of Appeals had before it Section 36 which declared it a misdemeanor for one to carry any dangerous and deadly weapon with the intent and purpose of injuring any person in any unlawful manner. The statute listed seven weapons which were designated as dangerous and deadly weapons per se. The statute further provided that "penknives without a switchblade and handguns” were without the ambit of the statute. The statute then stated that it did not apply to certain persons entitled to carry a proscribed weapon as a part of their official equipment, nor did it apply to a person who had been issued a permit to carry such a weapon, or who shall carry such weapon as a reasonable precaution against apprehended danger. The question before the Court was whether the appellant bore the burden of proving that the weapon involved was one not prohibited by the statute, or that the appellant was included in the enumerated exceptions. The ultimate question posed by the case was whether the State had to establish beyond a reasonable doubt that the knife Mackall was found to have carried with the deliberate purpose of injuring the victim was a dirk knife, a bowie knife, a switchblade knife or any other dangerous and deadly weapon other than "a penknife without switchblade.” The Court said, in citing Howes v. State, 141 Md. 532, 119 A. 297 (1922) as authority for its conclusions:

The teachings contained in the comprehensive discussion in Howes may be fairly summarized thus: when a penal act contains an exception so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the acts, omission or other ingredients which constitute the offense, the burden is on the State to prove beyond a reasonable doubt, that the offense charged is not within the exception. In other words, when an exception is descriptive of the offense or so incorporated in the clause creating it as to make the exception a part of the offense, the State must negate the exception to prove its case. But, when an exception is not descriptive of the offense or so incorporated in the clause creating it as to make the exception a part of the offense, the exception must be interposed by the accused as an affirmative defense. Howes at 535-548. Of course, the burden of proving the corpus delicti and criminal agency is always on the State, and once the exception is interposed by the defendant, the burden remains on the State to show that it is not applicable. [283 Md. at 110-11.]

With regard to the sawed-off shotgun statute, we note that the Legislature, in creating the criminal violation of the law which is encompassed by Section 481C, made it a crime to possess the specifically described weapon defined in the statute only under circumstances where the person who possessed it had not registered it with the United States government in accordance with the United States statutes. The State is therefore under an obligation to prove beyond a reasonable doubt: (1) possession; (2) of a gun with a barrel shorter than the statutory minimum; (3) and a failure to register the gun in accordance with the United States statutes. The non-registration of a sawed-off shotgun is a necessary element of the crime created under Section 481C, and the State must prove the failure to register in order to carry its burden of proof beyond a reasonable doubt of every element of the offense. This the State has failed to do.

The evidence in this case was insufficient to sustain the trial court’s verdict of guilty and the conviction must therefore be reversed.

Judgment reversed, costs to be paid by Mayor and City Council of Baltimore.


author: Lowe, J.,

text:
    BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY v. EDWARD F. BARBANO
    [No. 631,
    September Term, 1979.]

      Decided February 14, 1980.

    The cause was argued before Moylan, Lowe and Liss, JJ.

      Thomas J. Wohlgemuth for appellant.

      James R. Whattam, with whom were Walter S. Levin and Sauerwein, Boyd, Decker & Levin on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

— background —

Edward F. Barbano, the appellee in this case, was a probationary teacher in Aniie Arundel County. By virtue of a State Board of Education bylaw (13.06.02), two years are to be served in such capacity before a teacher may be cloaked with tenure. Within constitutional limits, and upon proper notice by the employing county board of education prior to May 1 of either of the first two years, a teacher’s employment may be terminated for whatever reasons, without redress by the probationer. Unless such notice of termination is given, however, the teacher’s holding of his position is protected by "tenure”. This simply means that he can not be dismissed or suspended thereafter except for cause, i.e., immorality, misconduct in office, insubordination, incompetency or willful neglect of duty. Md. Code, Ed. Art., § 6-202 (a) (1). While those grounds seem at first blush broad enough to provide substantial latitude to the employer sufficient to permit retaining only teachers of the highest caliber, the tenure provision in Md. Code, Ed. Art., § 6-202 provides further deterrents to dismissal. Before the individual can be removed for any of these causes, he must be provided notice, § 6-202 (a) (2), and a right to be heard, first by the county board, § 6-202 (a) (3), and if unsuccessful, then by the State Board, § 6-202 (a) (4).

The procedure for the dismissal is set forth in Ed. Art., § 6-202. Where the teacher has tenure, the "charges” are preferred by the county superintendent in the form of a recommendation to the county board that the teacher be dismissed for cause. Upon the proper notice, the board must hold a hearing. The practice has evolved that requires the superintendent to substantiate the cause asserted to support his recommendation. Although it is the board that makes the decision whether or not to terminate, because the teacher’s contract is with it, in reality the board acts in the manner of an impartial tribunal judging the charges made by one of its employees (the superintendent) against another of its employees (the teacher) and the latter’s defense to those charges.

Because of the obvious, central role that teachers play in the educational process, the policies and practices pertaining to their employment relationship are matters of considerable importance to every segment concerned with public education. This includes legislative bodies that must appropriate the money to pay the teachers’ salaries, boards of education and supervisory personnel responsible for administering the school system, students (for whom the entire system exists) who expect and have a right to be properly taught, parents who pay the taxes to fund the appropriations and, of course, the teachers whose means of livelihood are at issue.

Trying to balance these interests, the General Assembly authorized the State Board of Education to provide a tenure system. Ed. Art., § 6-202 (b) provides, however, that the State Board is not prohibited "from adopting bylaws to provide for a probationary period of employment of 2 years or less,” during which a teacher’s adequacy to instruct may be screened.

Most of the grounds for dismissal after the obtention of tenure are highly subjective in nature and are often incapable of precise measurement by reference to any single act. Incompetency is the most subjective of these causes and perhaps more than the others it calls for careful evaluation of the teacher during the 2-year probationary period.

Bylaw 13.06.02 was the State Board’s implementation of the authority providing the probationary period. It set forth a "Regular Contract” uniformly throughout the State containing the two year probationary period provision. As time passed it became apparent that such contractual uniformity did not take into account the variables of probationers’ evaluations in the 23 counties. The State Board also recognized that it was not up to the task of becoming a super-evaluator so it promulgated a study to establish evaluation guidelines. Out of respect for the divergent administrative peculiarities within the 23 counties, it did not seek a rigid uniformity but did attempt to systemize the procedure. See Wojtulewicz v. Board of Education of Baltimore County, No. HE-17-71-MC (May 30, 1973).

The State Board by resolution resolving to adopt "Guidelines for the Evaluation of Probationary Teachers” (guidelines), seemed to recognize the need for procedural discretion among the counties.

"The Board does not wish to substitute its judgment for those of the evaluators who have the direct responsibility of supervising probationary teachers.”

That approach was enforced by a more forceful addendum. The resolved "guidelines” compelled the county boards of education to adopt evaluation procedures which were "not inconsistent” with those. which it set forth as its own guidelines by resolution.

The State guidelines prescribed, among other things, a minimum number of observations of the probationary teacher each year, (4), by more than one qualified observer, after each of which the observer would consult with the teacher and submit a written report.

But the State Board’s procedures resolving these "guidelines” left something to be desired in determining their intended effect. By Ed. Art., § 2-205, the State Board is authorized to

"adopt bylaws, rules, and regulations for the administration of the public schools”, (c) (1),

and

"[t]hese bylaws, rules, and regulations have the force of law when adopted and published.” (Emphasis added) (c) (2).

The statute also indicates that the establishment of a probationary period should be enacted by a bylaw, and inferentially then, so should the procedures of evaluation during that period.

"Except for personnel of the Baltimore City public schools at the level of assistant superintendent or above, this section does not prohibit the State Board from adopting bylaws to provide for a probationary period of employment of 2 years or less.” Ed. Art., § 6-202 (b).

Why the State Board elected to proceed by "resolving” to "adopt guidelines” rather than by enacting a bylaw, or even a rule or regulation as established statutorily for administrative procedures, is unknown. What is certain, however, is that by failing to more formally legislate or regulate as authorized, the guidelines have neither the force nor the effect of law. Even if interpretatively this resolve could be called by any other name, e.g., a bylaw, rule or regulation, its enactment did not comply either with § 2-205 (c) (2) which withholds endowing them with the force of law until adopted and published, or with Md. Code, Art. 41, § 9 (as it then read) which required that copies of any rule or regulation enacted by a regulatory entity should be filed with the Clerk of the Court of Appeals, the Secretary of State, the State Library, the circuit court libraries and with the Department of Legislative Reference, before it becomes legally effective.

Effective or not, the Anne Arundel County Board of Education (appellant here) presumably attempted to comply with the State Board’s resolve, but again the method of compliance did not conform even to that which the State Board’s resolution called for. The county board did not "adopt evaluation procedures” as the State Board’s resolution provided it "shall” do; rather, according to the record, a Director of Staff Relations in the Anne Arundel County Department of Education sent out a memorandum to "All Principals” enclosing a copy of the "Guidelines for the Evaluation of Probationary Teachers recently adopted by the State Board of Education and effective September 1, 1974.” The memo then compared the guidelines’ requirements with the "TAAAC [Teachers Association of Anne Arundel County] negotiated agreement” which had been previously negotiated and adopted in that County. The Director’s memo explained that:

"In implementing Article 16 of the TAAAC — Board agreement, the principal can also satisfy the requirements of the State guidelines, except that the following provisions of the latter go beyond the requirements of the local agreement and must, therefore, be observed:
1. For probationary teachers, conferences and written reports must follow each of four conferences per year.
2. For probationary teachers the rating must be based on the conclusions and assessments of more that [sic] one staff member.
3. The rating must be considered as a factor in recommending non-renewal of a probationary teacher’s contract.”

— this case —

In the case of probationary teacher Edward F. Barbano, it is uncon tested that there has been less than absolute adherence to the State Board guidelines; however, the State Board decided (contrary to the recommendation of its examiner) that the evaluation had been adequate because it had been fair and impartial. The deviation from categorical adherence to these guidelines, in the opinion of the State Board, was not prejudicial to Barbano in that there had been "substantial adherence to their provisions” during the period when Barbano’s performance "was found wanting”.

Barbano appealed that decision to the Circuit Court for Anne Arundel County which ultimately reversed the State Board’s affirmance of the County Board’s refusal to renew Barbano’s contract. The only issue which it decided was:

"What is the legal effect of a County Board of Education’s decision not to renew a probationary (non-tenured) teacher’s employment contract, when that decision is arrived at following less than absolute adherence to 'guidelines’ adopted by the State Board of Education?”

The trial judge held that despite the unenforceability of the State Board’s resolution, not having the force of law,

"since the State Board promulgated the guidelines, both it and the County Boards are constrained to observe their terms.”

He further decided that even analogizing the statutory authority of the State Board to explain and interpret its own bylaws, rules and regulations, with the exclusive right to explain and interpret its own resolved guidelines, the minimum observations, reports, conferences and observers which were not met by the County authorities, were "numbers” which were too clear to be subject to explanation or interpretation. The right-to-interpret provision he referred to is another unique provision found in the broad fields of education which at the time of the State Board hearing read:

"The State Board of Education shall, to the best of their ability, cause the provisions of this article to be carried into effect. They shall determine the educational policies of the State; they shall enact bylaws, rules and regulations for the administration of the public school system, which when enacted and published shall have the force of law. For the purpose of enforcing the provisions of this article, and the enacted and published bylaws, rules and regulations of the Board, the State Board of Education shall, if necessary, institute legal proceedings. The State Board of Education shall, without charge and with the advice of the Attorney General of Maryland, explain the true intent and meaning of the law, and shall decide all controversies and disputes that arise under it, and their decision shall be final; and the secretary of the State Board of Education shall have authority to administer oaths, in any part of the State, to witnesses in any matter pending before said Board.” Md. Code, Art. 77, § 6.

— administrative precedent —

Prior to Barbano’s case, which the State Board decided on June 29, 1977, it had previously decided two similar cases using divergent explanations. In Eugene P. Macri v. Board of Education of Washington County, No. HE-9-76-FD (November 23, 1976), the majority of a divided State Board found that its "Guidelines for the Evaluation of Probationary Teachers” stated minimum standards that "should be followed with reasonable precision” even where the result is to grant tenure to a teacher whose qualifications are in doubt. In Gloria Summers v. Board of Education of Frederick County, No. 77-8 (No. HE-18-76-MC) (March 30, 1977), however, the State Board backed away from its decision in Macri. Adopting the Findings and Conclusions of the Hearing Examiner, the State Board found that its guidelines could be followed without rigid adherence if they had been substantially complied with.

"[T]he underlying purpose of the guidelines is not to assure that a probationary teacher will be given a fixed number of written reports, but rather that he or she will be given every reasonable opportunity to correct deficiencies and will be given adequate notice that failure to correct is likely to result in non-renewal.”

Subsequently, in this case, Barbano v. Board of Education of Anne Arundel County, No. 77-11 (No. HE-21-76-FD) (June 29, 1977), the State Board relied for its decision upon Summers, not Macri. The State Board held that so long as the facts indicated that the probationary teacher had been fairly and impartially evaluated, it was irrelevant that the guidelines were not categorically adhered to. Based upon this holding, the State Board affirmed the County Board’s decision not to renew appellee’s employment contract, after his second year of probationary employment.

—- the Accardi doctrine —

In reversing the State Board, the trial judge emphasized that he did not intend to interfere either with the interpretive right of the State Board’s regulations or its power to control public schools.

"It seems beyond dispute that numbers, which are the essential characteristics of the provisions listed above, cannot have any possible meaning other than their manifest expression. Thus, the nature of the particular provisions of the guidelines involved in this case is such that it permits no interpretation or explanation. This finding in no way detracts from the concededly special powers of the State Board to control and supervise the public schools. Robinson v. Board of Education of St. Mary’s County, 143 F. Supp. 481 (D. Md. 1956); Zeitschel v. Board of Education of Carroll County, 274 Md. 69, 332 A.2d 906 (1975).”

He then went on to hold essentially that unless the language of bylaws, rules, regulations (or analogous resolved guidelines) is ambiguous, the State Board must strictly compel adherence to them. This ruling was obviously contrary to the State Board’s own opinion in Summers that substantial compliance would suffice. The judge’s opinion said in part:

"This Court only finds that, when the State Board purports to control and supervise by promulgating guidelines for evaluation of probationary teachers, it must be bound by its own decision. In accord with this finding, the following language seems particularly fitting:
'Where an Agency confers a benefit by its regulations to a party in proceedings before it, it should not be permitted capriciously to deprive a party of that benefit.’ Equal Employment Op. Com’n. v. United States Pipe & F. Co., 375 F. Supp. 237, at 247 (N.D. Ala. 1974).
This holding is in accord with what seems to be the general rule in the sphere of administrative law: that action taken by an administrative agency in violation of its own procedural requirements cannot stand, and must be stricken down by the courts. E.g., Hopkins v. Md. Inmate Griev. Comm’n., 40 Md. App. 329, 391 A.2d 1213 (1978), and cases cited therein. This doctrine has been expanded to encompass administrative procedures promulgated in forms other than formal rules and regulations. E.g., United States v. Heffner, 420 F.2d 809 (4th Cir. 1969) (I.R.S. news release); Mandel v. U.S. Dept. of Health, Ed. and Welfare, 411 F. Supp. 542 (D. Md. 1976) , modified on appeal, 562 F.2d 914 (4th Cir. 1977) (pamphlet or policy statement). Also, the general rule seems to be that an administrative agency must follow its own procedures, whether the particular proceedings are 'adjudicative’, 'investigative’ or 'legislative’ in character. Cases in other Circuits have indicated that they would limit these general rules. E.g., Union of Concerned Scientists v. Atomic Energy Com’n., 499 F.2d 1069 (D.C. Cir. 1974) (violation of agency 'doctrine’ distinguished from violation of a rule or regulation); United States v. Leahey, 434 F.2d 7 (1st Cir. 1970) ('adjudicatory — investigatory dichotomy’). However, this Court finds the rule in the Fourth Circuit, and the better rule, to contemplate that an administrative agency is required to absolutely comply with the guidelines as well as the rules and regulations it promulgates and that this rule applies equally to adjudicative and investigative agency activities. See United States v. Heffner, supra; Mandel v. U.S. Dept. of Health, Ed. and Welfare, supra; Equal Employment Op. Com’n. v. Western Electric Co., Inc., 382 F. Supp. 787 (D. Md. 1974); Equal Employment Op. Com’n v. Westvaco Corp., 372 F. Supp. 985 (D. Md. 1974); Equal Employment Op. Com’n. v. Firestone Tire & Rubber Co., 366 F. Supp. 273 (D. Md. 1973); Hopkins, supra.
There are recognized exceptions to the rule that an agency must carefully follow its own procedural requirements. However, these exceptions seem to be limited to situations other than what is presented in the instant case. E.g., American Farm Lines v. Black Ball Freight, 397 U.S. 532, 25 L. Ed. 2d 547 (1970) and Matthews v. Walter, 512 F.2d 941 (D.C. Cir. 1975) (where procedural rules are intended to ensure 'the orderly transaction of agency business’, as opposed to being 'intended to "confer important procedural benefits” upon the parties before the agency’.); Taylor v. Maryland School for the Blind, 409 F. Supp. 148 (D. Md. 1976), aff'd. 542 F.2d 1169 (4th Cir. 1976) ('some greater interest was served by the violation’). This Court agrees with the Hearing Examiner’s opinion that the guidelines at issue here were meant to function in part as aids to assist probationary teachers in becoming competent. As such, the guidelines were meant to confer an important procedural benefit upon probationary teachers, a benefit which must be protected by requiring strict adherence to the provisions of the guidelines.”

— our opinion —-

The concluding premise underlying the trial judge’s opinion, i.e., that

"the guidelines were meant to confer an important procedural benefit upon probationary teachers .. ..”

is at best questionable. That probationers are the beneficiaries carries a seed of correctness but other beneficiaries of the guidelines appear to sprout like springtime croci from them also. To have rested his opinion on that premise overlooks the practical purpose as well as the underlying concept from which the guidelines emanated. That purpose — and its tangential benefits — were discussed by the State Board in its opinion prefacing enactment of the resolution attempting to adopt them. It was set out at length in Wojtulewicz v. Board of Education of Baltimore County decided May 30, 1973. Because the State Board found it

"... practically impossible to substitute our judgment for those of the educators who have the direct responsibility of supervising probationary teachers,”

the Board expressed a more basic concern that the administrative procedural hodge-pot would deter the dismissal of incompetents during the dismissable period.

"Moreover, we are concerned that an elaborate appeals procedure involving non-renewal of the contracts of probationary teachers would discourage local administrators from taking stern action against teachers who proved themselves inadequate during the probationary period and that a stream of appeals would seriously interfere with the regular workload of educational administrators and boards of education.”

Added to these primary concerns was the danger of losing a good teacher by a jaded supervisor who unchecked may abuse his discretion.

"At the same time we are not unmindful of the danger of abuse of discretion, of the danger that a bright and resourceful new teacher could be penalized by a principal or supervisor who has grown old and tired in his job and feels himself threatened.”

These were some of the problems of which the Board was aware

"and want to see to it that they are avoided.”

The Board then directed its staff to study and develop guidelines for the evaluation of probationary teachers. The guidelines, it decided, need not be so rigidly uniform as to discount divergent administrative resources in the respective counties; however,

"[i]n each county, be it large or small, there shall thus be put into effect a system in which the arbitrary decision of a single supervising person could not stand in the way of a probationary teacher’s career.”

It is apparent then, that while the State Board recognized that among the many benefits to be derived from these guidelines was "the procedural benefit [conferred] upon probationary teachers” (as indicated by the court below), it also recognized that the primary concern was the obtention of good teachers and the prevention of bad ones which is in accord with the underlying concept of the whole scheme of education. The primary purpose of the State Board of Education is not to bestow procedural benefits upon teachers of questionable competency, but to bestow upon students education by teachers of unquestionable competency. While the former frequently coincides with the latter, where the two may conflict, the former must unquestionably give way.

But more to the point of this case are neither the tangential benefits bestowed by the guidelines nor the philosophical reasons for their promulgation. The point of concern is the immediate purpose for the guidelines. With the philosophical chaff blown off, the purpose is reduced to that expressed by the Board in Wojtulewicz, i.e., to provide

"... a system . . .

or, as explained by the dissent in Maori which was subsequently followed in Summers,

"[w]e wanted to see to it that a set of practices was followed by each local school system .... So as to make sure that each public school system would adopt appropriate rules . . . .”

It is apparent then that the trial judge was in error in applying to this case that which we referred to in Hopkins v. Md. Inmate Griev. Comm’n, 40 Md. App. 329 (1978), as the "Accardi doctrine”, denominated by reason of its origin (U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)). To express the "doctrine” we chose the language from United States v. Heffner, 420 F.2d 809, 811 (4th Cir. 1970):

"An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down.”

The Supreme Court in American Farm Line v. Black Ball Freight Service, 397 U.S. 532, 538-539 (1970), however, treated the "doctrine” as an exception, while acknowledging that government agencies must comply with their own regulations. That is so when the regulations are intended primarily to confer important procedural benefits upon individuals. Absent such purpose, the "general principle” holds true:

" 'It is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it.’” Id. at 539, quoting NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764 (1953).

In Hopkins, supra at 336, we acknowledged that Supreme Court holding, but recognized it only as an "exception” to the Accardi "doctrine”. By whatever designation it is apposite here.

In the case at bar we are reviewing resolved guidelines without the force and effect of properly enacted rules, regulations or bylaws. More significantly, they are the resolves of a unique branch of government given peculiarly autonomous powers among which is the authority to explain the true intent and meaning of not only the rules, regulations and bylaws adopted by the Board, but the very provisions legislatively authorizing the powers and duties, etc., of the Board itself. Ed. Art., § 2-205 (e) (see old Art. 77, §§ 6,59). It is just such singular authority together with similar indicia of autonomy peculiar to the education field that caused the Court of Appeals in 1963 to hold that the State Board was invested with

"the last word on any matter concerning education policy or the administration of the system of public education.” Wilson v. Board of Education, 234 Md. 561, 565 (1964).

This observation was reemphasized by repetition in 1979, Resetar v. State Bd. of Education, 284 Md. 537, 556 (1979), cert. denied, 444 U.S. 838, 62 L. Ed. 2d 49 (1979). The specific authority to explain the true intent and meaning of its own laws and to decide all controversies and disputes that may arise under it was acknowledged 100 years before Resetar, as a "visitatorial power of the most comprehensive character”. Wiley, et al., Trustees v. Board Co. School Comm’rs of Allegany Co., 51 Md. 401, 406 (1879). The Court in Wiley went on to explain both origin and purpose as regarded it:

"[A]nd it has been settled ever since the great case of Phillips v. Bury, (Lord Raym., 5, 2 Dun. & East, 346,) that such power is, in its nature, summary and exclusive. In delivering the judgment in the case of St. John's College vs. Toddington, 1 Burr., 159, 200, Lord MANSFIELD said that 'the visitatorial power, if properly exercised, without expense or delay, is useful and convenient to colleges; and it is now settled and established that the jurisdiction of a visitor is summary and without appeal from it.’ And it may be added, that such power is not more useful and convenient to colleges than to other well organized educational establishments. If every dispute or contention among those entrusted with the administration of the system, or between the functionaries and the patrons or pupils of the schools, offered an occasion for a resort to the Courts for settlement, the working of the system would not only be greatly embarrassed and obstructed, but such contentions before the Courts would necessarily be attended with great costs and delay, and likely generate such intestine heats and divisions as would, in a great degree, counteract the beneficent purposes of the law. It is to obviate these consequences that the visitatorial power is conferred; and wherever that power exists, and is comprehensive enough to deal with the questions involved in an existing controversy, as the case here, Courts of equity decline all interference, and leave the parties to abide the summary decision of those clothed with the visitatorial authority.”

In the face of such awesome authority, how can we fail to apply that exception to the Accardi doctrine, allowed more mundane agencies, when the State Board interpreting its own authority has indicated that the guidelines which resolved to avoid an elaborate appeals procedure were administrative rules for the orderly transaction of business, i.e., to provide "a system” applicable among the 23 counties.

The trial judge erred by placing inordinate emphasis upon the Hearing Examiner’s conclusion that

"the guidelines at issue here were meant to function in part as aids to assist probationary teachers in becoming competent,”

as being the primary purpose of guidelines. That may indeed have been a beneficial offshoot, but the Board’s own opinions are clear that the guidelines were intended to provide a degree of uniformity (though not express uniformity) in guiding the divergent county boards in negotiating annually such procedures with the union-like representatives of the teachers.

— the next case —

The "rights” — if any — that enure to the benefit of the probationer from the guidelines may be protected by his contractual right, to the extent a contract exists, or deprivation of due process, to the extent such constitutional rights exist. The trial judge expressly declined to address the termination vis-a-vis the negotiated agreement between the Teachers’ Association and the County Board of Education of Anne Arundel County; nor did he address the "legal adequacy of the notice of termination” which may also (but probably does not) affect the due process question on a constitutional level. We will not address those issues either because the trial judge has not decided them. Md. Rule 1085. He will be given that opportunity upon remand.

We find it necessary briefly to address another issue raised by appellant, that is that

'jtjhe State Board of Education had no Jurisdiction to Hear the Complaint of the Appellee, Barbano Involving as it did a Purely Legal Question Relating to the Law of Contracts.”

While we are somewhat confounded by appellant’s tactic of attacking the jurisdiction of the body before which it prevailed, we will address the issue, if but passingly brief. Suffice to say, we agree with the conclusion of the trial judge who said:

"More recently in, Zeitschel v. Board of Education, 274 Md. 69 (1975), the Court of Appeals, in a case involving the State Board of Education’s review of a local board of education’s decision to terminate a probationary teacher’s employment, decided the appeal on the merits. While the jurisdiction of the State Board of Education was not raised on the appeal, the Court of Appeals clearly indicated that the matter was one within the jurisdiction of the State Board of Education. This Court finds, that, Zeitschel, supra, is controlling on the issue of the State Board of Education’s jurisdiction on the issue relating to the lack of a proper evaluation in this case. The appeal as to this issue, must be allowed to stand.”

We also note that the Court of Appeals in Wilson, supra, had no difficulty finding authority for the State Board to review such cases.

"For present purposes it is immaterial, we think, whether the power exercised in the instant case is viewed as an exercise of the rulemaking power, as the resolution of a dispute, or as a matter of general control and supervision. In any aspect the problem of screening employees is one of administrative policy, and the mere fact that the solution is initially within the scope of the County Board’s authority does not negative the power of the State Board to review it and set it aside, as the cases cited demonstrate.” Wilson, supra at 565.

Judgment reversed.

Case remanded for determination of the issues undecided.

Costs to be paid by the appellee.

Appendix I.

"RESOLUTION

MARYLAND STATE BOARD OF EDUCATION December 19, 1973

Resolution No. 1973-49 Re: Adoption of Guidelines for the Evaluation of Probationary Teachers

WHEREAS, Disputes and controversies have arisen over the non-renewal of contracts of probationary teachers; and

WHEREAS, The State Board of Education believes that there should be in existence a fair and impartial system for the evaluation of probationary teachers by their fellow professionals; and

WHEREAS, The Board does not wish to substitute its judgment for those of the evaluators who have the direct responsibility of supervising probationary teachers; now, therefore, be it

RESOLVED, That the State Board of Education adopt Guidelines for the Evaluation of Probationary Teachers which follow:

PROPOSED GUIDELINES FOR THE EVALUATION OF PROBATIONARY TEACHERS

Each county board of education and the Board of School Commissioners of Baltimore City shall adopt evaluation procedures for probationary teachers, to become effective September 1, 1974, which are not inconsistent with the following provisions:

Observations

1. Teachers who have not achieved tenure status shall be observed periodically at least four (4) times during the school year by the staff of each local board of education and the staff of the School Commissioners of Baltimore City as determined by the superintendent. Each observation of performance shall be conducted openly and with full knowledge of the teacher for a period of time sufficient for an adequate appraisal of that instructional activity.

2. The teacher shall be observed by more than one qualified person each year as determined by the superintendent.

3. Within a reasonable period of time subsequent to each observation, the observer will hold a conference with the teacher, at which time a written observation report shall be submitted. The report should include, where appropriate, favorable comments, criticisms and specific recommendations for improvement.

Evaluations

1. A formal evaluation including a conference shall be made at least once each semester.

2. The evaluation shallbebasedon the conclusions and assessments reached by more than one staff member.

3. The evaluation shall be based on the observations of the teacher’s performance and other reasonable criteria established by local boards of education and the Board of School Commissioners of Baltimore City.

4. Provision shall be made for an over-all assessment by the evaluator which clearly indicates a satisfactory or unsatisfactory rating.

5. The written evaluation report based on performance and other reasonable criteria established by the local boards of education and the Board of School Commissioners of Baltimore City shall be shown to the teacher within a reasonable period of time subsequent to the aforementioned conference. At that time, the teacher shall sign the report and receive a copy thereof. Such signature will, however, not necessarily indicate agreement with the evaluation. Provision shall be made for written comments and reactions by the teacher(s) which shall be attached to the evaluation report.

6. Except for bona fide reductions of staff, the superintendent’s recommendation as to non-renewal of contract of probationary teachers shall be based on the evaluation report and other reasonable criteria established by local boards of education and the School Commissioners of Baltimore City prepared in accordance with these provisions.

Copies of new evaluation procedures developed by local school systems and based on State Guidelines For The Evaluation Of Probationary Teachers shall be submitted to the State Superintendent of Schools not later than September 1, 1974.”

      . Md. Code, Ed. Art., § 6-202 reads as follows:
      "(a) Grounds and procedure for suspension or dismissal. — (1) On the recommendation of the county superintendent, a county board may suspend or dismiss a teacher, principal, supervisor, assistant superintendent, or other professional assistant for:
      (i) Immorality;
      (ii) Misconduct in office;
      (iii) Insubordination;
      (iv) Incompetency; or
      (v) Willful Neglect of duty.
      (2) Before removing an individual, the county board shall send the individual a copy of the charges against him and give him an opportunity within 10 days to request a hearing.
      (3) If the individual requests a hearing within the 10 day period:
      (i) The county board promptly shall hold a hearing, but a hearing may not be set within 10 days after the county board sends the individual a notice of the hearing; and
      (ii) The individual shall have an opportunity to be heard before the county board, in person or by counsel, and to bring witnesses to the hearing.
      (4) The individual may appeal from the decision of the county board to the State Board.
      (b) Probationary period. — Except for personnel of the Baltimore City public schools at the level of assistant superintendent or above, this section does not prohibit the State Board from adopting bylaws to provide for a probationary period of employment of 2 years or less.”

      . See Appendix I.

      . The judge so decided because of noncompliance with the publication provision of § 2-205 (c) (2).

      . The provisions are now recodified in Ed. Art., § 2-205 (e) which reads:
      "(e) Interpretation of law; controversies and disputes. — (1) Without charge and with the advice of the Attorney General, the State Board shall explain the true intent and meaning of the provisions of:
      (i) This article that are within its jurisdiction; and
      (ii) The bylaws, rules, and regulations adopted by the Board.
      (2) The Board shall decide all controversies and disputes under these provisions.
      (3) The decision of the Board is final.”

      . The State Board recognized its own conflicting opinions and in essence reversed itself in a footnote which said:
      "We recognize that while this determination is in consonance with our decision in Summers v. Board of Education of Frederick County, Opinion 77-8, decided March 30, 1977, it may be difficult to harmonize it with our decision in Macri v. Board of Education of Washington County, decided November 23, 1976. As this opinion demonstrates, the questions at issue have been further analyzed by the Board and the Board will henceforth be guided by the views expressed herein.”

      6. All of these cases cited by the trial court involve rules, regulations, or other informal guidelines promulgated primarily if not specifically for the benefit of the individual. United States v. Heffner, supra (IRS instructions for procedure to protect constitutional rights of persons suspected of criminal tax fraud, during all phases of its investigations); Mandel v. U.S. Dept. of Health, Ed. and Welfare, supra (Policy statement wherein if a school system is not in compliance with Title VI, the Office for Civil Rights will inform the school system in detail of the areas in noncompliance before commencing enforcement procedures); Equal Employment Op. Com’n v. Western Electric Co., Inc., supra (EEOC regulation requiring notice that suit would be filed against individual unless individual requests that conciliation be resumed); Equal Employment Opportunity Com’n v. Westvaco Corp., supra (EEOC regulation that conciliation is an essential step to be taken before suits can be filed against an employer on charges of discrimination. If conciliation fails the EEOC must notify the parties); Equal Employment Op. Com’n v. Firestone Tire and Rubber Co., supra (EEOC regulation requiring right of notice designed to insure that the statutory mandate of attempts at conciliation is carried out); Hopkins, supra (Procedural rule that inmate be given a hearing within 72 hours of an alleged violation).

      . In this Supreme Court case as well as in the case at bar, it was argued that the agency rules were adopted to confer important procedural benefit upon individuals. The Supreme Court found, however, that those rules were intended primarily for the purpose of providing necessary information for the orderly transaction of business. While the procedural rules may have provided benefits to individuals, that was not intended as their primary purpose. Thus the Court found "no reason to exempt this case from the general principle”.

      . The jurisdiction of this Court beyond "the inherent power [it] possesses] to review and correct actions by an administrative agency which are arbitrary, illegal, capricious or unreasonable”, Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 501 (1975), has not been raised.

      . ..... "Not presently before this Court are the issues of the legal adequacy of the notice of termination given Appellant [appellee here], and the legal effect of a termination decision reached following less than absolute adherence to the provisions of the negotiated agreement entered into between the Teachers’ Association of Anne Arundel County and the Anne Arundel County Board of Education.”

      . It is questionable where a probationer possesses a requisite "interest” in continued employment to give standing in a constitutional sense. See Bishop v. Wood, 426 U.S. 341 (1976); Tennessee v. Dunlap, 426 U.S. 312 (1976); Perry v. Sindermann, 408 U.S. 593 (1972); Board of Regents v. Roth, 408 U.S. 564 (1972); Small v. Sec. of Personnel, 267 Md. 532 (1973); Ahlgren v. Cromwell, 179 Md. 243 (1941).

      . In light of the immense legislative authority vested in the State Board coupled with the judicial deference paid it over the years, it seems more likely that one would question the right to appeal from the Board’s rulings rather than the right to appeal to the Board.


author: Wilner, J.,

text:
    KELLY JAMES PIRNER v. STATE OF MARYLAND
    [No. 696,
    September Term, 1979.]

      Decided February 14, 1980.

    The cause was argued before THOMPSON, WlLNER and MacDaniel, JJ.

      Thomas A. Pavlinic for appellant.

      Paul T. Cuzmanes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Robert C. Nalley, State’s Attorney for Charles County, and Richard B. Starkey, Deputy State’s Attorney for Charles County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

On the evening of June 24, 1978, someone broke into the County Prescription Shop, Inc., a drug store in Charles County, and stole a considerable amount of prescription drugs, some of which, as will be seen, were classified as controlled dangerous substances. Nearly four months later— on October 14, 1978, to be exact — officers of the Charles County Sheriffs Department, having some reason to believe that appellant was in possession of at least a part of the stolen drugs, arrested him and searched his automobile. Both the arrest and the search were without benefit of a warrant. In a duffel bag located under the carpet behind the passenger’s seat of the car, the officers found 752 capsules of Darvon which, the record shows, had been taken from the County Prescription Shop, Inc., in the course of the June 24 breaking.

As a result of all this, appellant and a co-defendant were charged in a six-count indictment with various larceny and unlawful possession offenses. Following the denial of his motion to suppress the evidence seized from his automobile, appellant worked out a form of "plea agreement” with the State in which (1) he maintained his not guilty plea to all six counts, (2) the State agreed to proceed upon the third count only, all evidence to be by an agreed statement of facts, (3) the State would remain mute as to sentence, and (4) after sentencing on the third count, the State would nol pros the other five counts. All of this was done; and, upon the statement of facts read into the record by the State’s Attorney, appellant was convicted on the third count. After considering a pre-sentence investigation report, the court sentenced him to 90 days in the county jail.

In this appeal, appellant makes two claims: one, that the court erred in denying his suppression motion and, two, that the third count, in effect, failed to state a crime. Though arguing vigorously that the search was valid, the State has seen fit to confess error with respect to the second issue and has urged that we reverse the conviction on that account. It is commendable for the Attorney General to confess error when he believes that a mistake affecting a citizen’s life, liberty, or property has been made; and this is a proper case for such a confession. It seems, however, that he has confessed to the wrong error. In our judgment, the third count of the indictment does state a crime. It is the search that was improper, and it is for that reason that we must reverse the conviction.

(1) The Third Count

Count three of the indictment charged appellant with the "unauthorized use” of the stolen prescription drugs in violation of Md. Ann. Code art. 27, § 349. Specifically, the count recited that appellant "against the will and consent of County Prescription Shop, Inc., a Maryland corporation, unlawfully did wilfully take and carry away: assorted prescriptive drugs and pharmaceutical products, to include containers of Darvon Compound 65 (propoxyphene hydrochloride), of the goods, chattels, monies and properties of County Prescription Shop, Inc... contrary to Article 27, Section 349 of the Annotated Code of Maryland... .”

Article 27, § 349 states, in relevant part:

"Any person .. . who shall enter, or being upon the premises of any other person . .. shall, against the will and consent of said person... wilfully take and carry away any horse, mare, colt, gelding, mule, ass, sheep, hog, ox or cow, or any carriage, wagon, buggy, cart... or any other vehicle including motor vehicle as defined in the laws of this State relating to such, or property whatsoever, or take and carry away out of the custody or use of any person . . . any of the above-enumerated property at whatsoever place the same may be found, shall upon conviction thereof. . . be adjudged guilty of a misdemeanor. . . .” (Emphasis supplied.)

Nowhere in the body of § 349 is the taking of prescription drugs specifically proscribed, yet that is what count three of the indictment charged, and that is what the evidence showed appellant did. Appellant did not challenge the sufficiency of count three until after his conviction thereon pursuant to his "plea agreement”; indeed, he first raised the issue at his sentencing hearing. This is not fatal to his complaint here, however, for if § 349 does not apply to the taking of prescription drugs, count three, as written, fails to charge a crime. Such a defect would be jurisdictional in nature and could therefore be raised beyond the time otherwise required by Maryland Rule 736. See Baker v. State, 6 Md. App. 148 (1969); Andresen v. State, 24 Md. App. 128, 153 (1975), cert. den. 274 Md. 725, aff'd 427 U.S. 463.

The precise question at issue is whether the phrase "or property whatsoever,” which would ordinarily include prescription drugs, is, by application of the doctrine of ejusdem generis, so limited to the types and classes of property particularized in the language preceding that phrase in the statute as to exclude anything else. Appellant and the Attorney General believe that it is; the court below thought otherwise.

Appellant’s argument proceeds primarily from certain observations made by the Court of Appeals in Wright v. Sas, 187 Md. 507 (1947), and by this Court in Robinson v. State, 17 Md. App. 451 (1973), as to the nexus or relationship between § 349 — an "unauthorized use” offense — -and § 348, a much older larceny statute that was originally designed to deal with horse thieves. Both Courts have said that the two statutes are "closely related” (Wright, 187 Md. at 510) or that § 349 is "similar to” or "parallels” § 348 "in all respects.” Robinson, 17 Md. App. at 456; Henry v. State, 20 Md. App. 296, 299 (1974). From these statements, and from the historical predicate offered for them, appellant suggests that the phrase "or property whatsoever” as it appears in § 349 cannot be given any broader meaning or effect than the particular types of personal property mentioned in § 348 or § 349.

As was determined in Wright and Robinson, § 348, in its original 1744 enactment by the Colonial Assembly, followed an even older common law practice of dealing more severely with horse thieves than with purloiners of other types of personalty. A convicted horse thief, both in England and under the 1744 statute, was denied benefit of clergy, making death on the gallows a virtual certainty. Over the years, however, the Legislature amended the statute in two significant respects: it expanded the scope of the enactment to include within it the theft of other types of animals than horses and it reduced, both absolutely and comparatively, the severity of the punishment. As of 1880, the statute, then codified as § 47 of art. 72 (1878 Code):

(1) applied to the felonious stealing of a horse, mare, gelding, colt, ass, or mule; and
(2) in addition to requiring restoration of the animal, subjected the offender to imprisonment for two to fourteen years. The penalty for grand larceny generally (§ 38) was restoration plus imprisonment for one to fifteen years — not a whole lot of difference.

According to the Journal of the House of Delegates (1880 Session), § 349 originated from an order adopted on February 25, 1880, granting leave to the House Judiciary Committee to introduce a bill entitled "an Act to add an additional section to Article 30, of the Code of Public General Laws, to prevent dog-stealing.” It does not appear that a bill dealing with dog stealing was ever introduced, however. What was submitted by the Judiciary Committee and read for the first time on March 2,1880, was "A bill entitled an Act to add an additional section to Article 30, of the Code of Public General Laws, entitled 'Crimes and Punishments.’ ” This bill, which was to pass the House without amendment, made it a misdemeanor to enter the premises of another person and, against the will and consent of that person, to take away a "horse, mare, colt, gelding, mule, ass, ox, or cow, or any carriage, wagon, buggy, cart, or any other vehicle or property whatsoever.” (Emphasis supplied.)

The Senate added a number of amendments to the bill, one of which was the inclusion of sheep and hogs in the list of animals covered. See Senate Journal (1880), pp. 573, 574. The House concurred in the Senate amendments, and that is how the bill passed and became law as Chapter 164, Acts of 1880. As enacted, the bill was considerably broader in scope than the 1744 horse-stealing law as then current. It was not restricted to animals, for one thing, but included all manner of carts and vehicles — i.e., inanimate objects; and it also expanded the list of animals to include oxen, cows, sheep, and hogs. These, of course, were not animals normally used for human transportation, as were all of the animals included in the 1744 statute; their use was as livestock or, in the case of oxen, as work animals.

It is thus clear that, although the two laws (or offenses) were closely related and parallel in some respects, the distinction between them was greater than merely the requirement in one of animus furandi (although that was, of course, itself a most important difference). The broader scope of the newer act has remained intact since its adoption. Indeed, the only significant change to either statute that is relevant to this case came in 1918 when the General Assembly added "motor vehicle as defined in the laws of this State” to both provisions. See Laws of Md., 1918, ch. 422. This was clearly a substantive addition with respect to the larceny statute (§ 348); as to § 349, the Court of Appeals noted in Wright v. Sas, supra, 187 Md. at 511:

"Perhaps the amendment was not necessary [in § 349] which already covered 'any carriage, wagon, buggy, cart or any other vehicle * * * or property whatsoever.’ Apparently it was thought or feared that, by reason of the association of vehicles (all horsedrawn or ox-drawn, in 1880) with horses, 'vehicle’ might not include a subsequently invented 'horseless carriage.’.. ..”

It is in this context that we consider the application of ejusdem generis. Preliminarily, it is important to note that Wright, Robinson, and Henry all involved the taking of vehicíes, and were therefore clearly within the statutory purview of both § 348 and § 349. The comments made in those cases as to the relationship between the two statutes must therefore be considered in that context. Neither in those cases, nor in any other brought to our attention, has the Court of Appeals or this Court ever concluded (or even suggested) that the phrase "or property whatsoever” in § 349 does not mean precisely what it says.

The doctrine of ejusdem generis has been most commonly stated as follows: Where general words in a statute follow the designation of particular things or classes of subjects or persons, the general words will usually be construed to include only those things or persons of the same class or general nature as those specifically mentioned. "This rule is based on the supposition that if the Legislature had intended the general words to be considered in an unrestricted sense, it would not have enumerated the particular things.” See Smith v. Higinbothom, 187 Md. 115, 130 (1946); 82 C.J.S. Statutes, § 332b (p. 658). This rule or doctrine is not absolute, however. As the Court further observed in Blake v. State, 210 Md. 459, 462 (1956):

"The rule of ejusdem generis, however, is merely a rule of construction, and cannot be invoked to restrict the meaning of words within narrower limits than the statute intends, so as to subvert its obvious purpose.”

In American Ice Co. v. Fitzhugh, 128 Md. 382, 388 (1916), the Court quoted with obvious approval this statement from National Bank of Commerce v. Ripley, 161 Mo. 126, 61 S.W. 587 (1901):

"* * * But this [ejusdem generis] is only a rule of construction to aid us in arriving at the real legislative intent. It is not a cast-iron rule, it does not override all other rules of construction, and it is never applied to defeat the real purpose of the statute, as that purpose may be gathered from the whole instrument. It is a corollary to the first proposition above stated, that the statute must be construed to give effect to all its words. The rule itself must not be so construed as to defeat that purpose. Whilst it is aimed to preserve a meaning for the particular words, it is not intended to render meaningless the general words. Therefore, where the particular words exhaust the class, the general words must be construed as embracing something outside of that class. If the particular words exhaust the genus there is nothing ejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose.” (Emphasis supplied.)

The italicized statement was quoted again in Blake, supra, 210 Md. at 462, the Court there ascribing it to American Ice Co. rather than to the Missouri case. See also 82 C.J.S. Statutes, at p. 665: "The rule does not apply where its application would render meaningless the general words, as where the specific words exhaust or embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless. . . .”

In light of this constraint, a mere reading of the two statutes makes clear the fallacy of appellant’s argument. What should the phrase "or property whatsoever” be limited to? To what is included in § 348? To do that would require that we ignore the deliberate inclusion of specific categories in § 349 that never were in § 348 — oxen, cows, sheep, hogs, carriages, wagons, buggies, carts, vehicles other than motor vehicles. No, it is clear that, even in the specific enumeration, § 349 was intended to include a broader range of items than § 348. What then: to animals? That would ignore the specific inclusion of inanimate means of locomotion in § 349. Perhaps then to means of locomotion. Wrong again; that would not only overlook the inclusion (by specific amendment) of sheep and cows, which are not means of locomotion, but the fact that all such means of locomotion are already included through the enumeration of all manner of vehicles.

Illuminating as this micro-analysis is, it but illustrates that the Legislature did indeed convey an intent to cover within this "unauthorized use” statute a good bit more than what was included in the horse-stealing statute. And there was good reason for it to do so. As was pointed out in both Wright and Robinson, the real significance of § 349 was to eliminate the element of animus furandi from what otherwise was a larceny offense. It is not illogical, then, for the 1880 Legislature to have wanted this new offense to apply to the unauthorized taking of all property to which the existing larceny statutes applied, mentioning specifically certain types of animals and vehicles only because of their special economic importance at the time.

Keeping in mind that ejusdem generis is but a rule of construction, and that the overriding imperative in all cases is to construe a statute reasonably so as to effectuate the intent of its enactor, it is plain that the general phrase "or property whatsoever” cannot be limited in the manner that appellant and the Attorney General suggest. To do so would be to render the phrase meaningless and thus thwart a rather obvious legislative intent to include property other than animals and vehicles. There being nothing in the plain meaning of the statutory phrase, or in the legislative history, to indicate a desire to exclude a broader range of property, we believe that the doctrine of ejusdem generis as espoused by the parties here, is inapplicable. Section 349 does include a proscription against the unauthorized taking of prescription drugs. Count three of the indictment did, therefore, charge a crime, and the evidence sufficed to sustain appellant’s conviction of it.

(2) Validity of the Search

The arrest and search in question occurred at about 2:00 p.m. on October 14,1978. At some point before then — within a week or two — one Charles Holmes contacted Officer Joseph Stine, of the county sheriffs department, and advised him that appellant was dealing in drugs. Holmes said that he had heard from appellant that appellant had been involved in the drug store breaking and that he (appellant) had some Darvon and Librium that he wanted to sell. No immediate action was taken as a result of this initial contact.

At about 11:30 a.m. on October 14, Holmes called Stine again and told him that appellant had called and again offered to sell some Darvon. Stine told Holmes to set up a location and to let him know. Holmes called back later and told Stine that appellant would be at a particular restaurant at 2:00 that afternoon. He also told Stine, at some point, that appellant would be driving a red Datsun 280Z with temporary tags and an antenna. Stine met with Holmes about 12:30 p.m., fitted him with a voice transmitter, and arranged to meet him (or took him) to the restaurant shortly before 2:00.

Holmes was placed inside the restaurant — a fast food place — while Stine and other officers waited in a car across the street. At about the appointed hour, Stine heard Holmes say "here he comes in his 280Z, antenna and all.” He looked up and observed a red Datsun 280Z with an antenna turn into the restaurant parking lot. Two people were in the car, the driver being a woman. Stine heard Holmes ask, "Do you have the stuff?”, to which a male voice replied, "Yes, let’s go around to the other side.” The Datsun then proceeded to the other side of the building and Holmes said, "Now is your chance.” Stine and his colleagues then closed in, blocked the Datsun, arrested its passengers, and removed them from the car.

Stine and a fellow officer then commenced to search the car. Underneath the carpet behind the passenger’s seat, the other officer discovered a white canvas duffel bag, to which he called Stine’s attention. Suspecting that the "dope” was in the duffel bag, Stine immediately opened it, looked inside, and had his suspicions fully confirmed.

The thrust of appellant’s challenge to the evidence seized was that the automobile search was unlawful. His contention was that Holmes, the informant, had not been shown to be sufficiently reliable or to have a sufficient basis of knowledge to give Officer Stine probable cause to search the vehicle. As to this, we disagree. Although, as Officer Stine himself conceded, the information supplied by Holmes, standing alone, would not have sufficed to constitute probable cause, the deficiency was cured when he saw the red Datsun appear as Holmes said it would, and heard the drug sale about to be consummated, as Holmes said it would be.

At issue with respect to the automobile search is the admixture of principles announced by the Supreme Court in Carroll v. United States, 267 U.S. 132 (1925), Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), which we synopsized in Jarrell v. State, 36 Md. App. 371, 373 (1977), as follows:

"In order to justify the warrantless search of the appellant’s automobile, under the so-called automobile exception, Carroll v. United States, 267 U.S. 132 (1925), probable cause and exigent circumstances must be established. Soles v. State, 16 Md. App. 656 (1973). In addition, when using an informant to show probable cause, such as here, it must be demonstrated that he was credible, his information reliable, and he possessed a sufficient basis of knowledge [citing Aguilar and Spinelli].
"An informant’s credibility can be established by showing receipt of present or past reliable information. Stanley v. State, 19 Md. App. 507, cert. denied, 271 Md. 745 (1974).. ..” (Emphasis supplied.)

It is unimportant, in this case, that Holmes had not established his credibility in the past; his present credibility was established by events unfolding before the officer’s own eyes and ears. When an informant, based upon his own personal knowledge, states that a specific unlawful act is going to occur at a particular time and place, and a police officer, forewarned, sees and hears the event about to take place precisely as the informant said it would, it is specious to suggest that the informant has not been shown to be credible, or that his information is not reliable.

Given the totality of the information available to Officer Stine, we believe that he did have probable cause to arrest appellant and to search the car. What he did not have authority to do, however, is to search the white duffel bag that he found in the car; and it is for that reason that the evidence seized was inadmissible and the conviction must be reversed.

In fairness to Officer Stine, he made the search eight months before the Supreme Court definitively said he should not have done so.

The court gave a strong indication in United States v. Chadwick, 433 U.S. 1 (1977), that the so-called "automobile exception” first enunciated in Carroll v. United States, supra, 267 U.S. 132, would not routinely permit the search of luggage and luggage-type containers merely because they were located in an automobile that itself was properly subject to search. To the extent there was any doubt on that point because of the particular facts of Chadwick, the Supreme Court appears to have cleared it up quite well in Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586 (1979). Observing that once the piece of luggage is physically seized and removed from both the vehicle and the arrestee’s dominion the "exigency of mobility” with respect to it is lost, the Court concluded (99 S. Ct. at 2594):

"In sum, we hold that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations. Thus, insofar as the police are entitled to search such luggage without a warrant, their actions must be justified under some exception to the warrant requirement other than that applicable to automobiles stopped on the highway. Where — as in the present case — the police, without endangering themselves or risking loss of the evidence, lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained. In this way, constitutional rights of suspects to prior judicial review of searches will be fully protected.”

In a footnote (No. 13, 99 S. Ct. at 2593), the Court stated that not all containers and packages would be so protected, mentioning those containers which "by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” But, subject to special circumstances not present here, it made clear that its protective rule would apply to personal hand luggage; and there is nothing in this case to suggest that the duffel bag in question would not fall squarely into that category of item. See United States v. Meier, 602 F.2d 253 (10th Cir. 1979), holding Sanders applicable to a "backpack”; also United States v. Gooch, 603 F.2d 122 (10th Cir. 1979), involving a briefcase. See also Shingleton v. State, 39 Md. App. 527, 539 (1978), decided under Chadwick, and cf. Dawson v. State, 40 Md. App. 640 (1978).

The State has not attempted to justify the search of the duffel bag as one conducted incident to the arrest; nor, from the facts in this record, could it legitimately do so. We thus have almost precisely the situation described by the Supreme Court in footnote 12 of Sanders, 99 S. Ct. at 2593:

"It is beyond question that the police easily could have obtained a warrant to search respondent’s bag if they had taken the suitcase to a magistrate. They had probable cause to believe not only that respondent was carrying marijuana [read: Darvon], but also that the contraband was contained in the suitcase that they seized. The State argues that under the circumstances of this case inconvenience to all concerned would have been the only result of deferring search of the suitcase until a warrant was obtained. Those in respondent’s position who find such inconvenience unacceptable may avoid it simply by consenting to the search.”
Because of the unlawful search of the duffel bag, the evidence seized from it was inadmissible.

Judgment reversed; Charles County to pay the costs.

      . This procedure of maintaining a not guilty plea but proceeding on an agreed statement of facts is not truly a plea agreement within the meaning of Maryland Rule 733, although it has become a popular variation of or alternative to it. See Gray v. State, 38 Md. App. 343 (1977), cert. den. 282 Md. 732 (1978).

      . See House Journal, pp. 441,1505. Article 30 was the criminal law under the 1860 Code. The 1878 Code moved the criminal code to art. 72, but for some reason bills in the 1880 session continued to refer to art. 30.

      . Wright v. Sas involved the question of whether § 349 (then § 397) was repealed by implication as an inconsistent law by the enactment of a new motor vehicle code in 1943. The focus of the Court was on the relationship between § 397 and a similar provision in the motor vehicle code. Robinson concerned a leased automobile, the question being whether a provision in the lease prohibiting the lessee from allowing anyone else to drive the car necessarily made a use of it by anyone else, however permissive, a violation of § 349. Henry dealt with whether §§ 348 and 349 were mergeable or inconsistent offenses.

      . Although the record is not entirely clear on this, it appears that the antenna mentioned was something other than a normal aerial for a car radio.

      . Appellant contends that Stine’s interception of the conversation he had with Holmes was unlawful, and should therefore be disregarded in determining the existence of probable cause. He bases this argument on the supposition that Darvon is not a controlled dangerous substance, and that the interception was therefore not authorized under Courts article, § 10-402 (c) (2). But the drug (propoxyphene hydrochloride) whose trade name is Darvon is a Schedule IV controlled dangerous substance under Federal law (see 21 CFR § 1308.14 (f); 42 FR 8636 (2/11/77)), and thus, by virtue of Md. Ann. Code art. 27, § 278 (c), is also a controlled dangerous substance under State law. See Samson v. State, 27 Md. App. 326, 333 (1975). Given the circumstances here, the interception was permissible under § 10-402 (c) (2), and the comments overheard through the transmitter may therefore be weighed in determining whether Stine possessed that quantum of reasonable suspicion necessary to constitute probable cause.

      . In footnotes 11 and 12 (99 S. Ct. at 2593), the Court noted a number of special conditions and circumstances in which warrantless luggage searches may be permissible: "special exigencies” dependent upon the probable content of the luggage and the suspect’s access to it; searches incident to an arrest, requiring, of course, that the item be within the arrestee’s "immediate control”; border searches under United States v. Ramsey, 431 U.S. 606 (1977).