author:
Morton, J.,
      Wilner, J.,

text:
    RONALD M. COX et al. v. PRINCE GEORGE’S COUNTY, MARYLAND et al.
    [No. 528,
    September Term, 1981.]

      Decided February 24, 1982.

    The cause was argued before Morton, Moore and Wilner, JJ.

      Louis Fireison, with whom were Fireison & Olshonsky, P.A. on the brief, for appellants.

      David S. Bliden, Associate County Attorney for Prince George’s County, with whom were Robert B. Ostrom, County Attorney for Prince George’s County, and Michael O. Connaughton, Deputy County Attorney for Prince George’s County, on the brief, for appellees.
   Morton, J.,

delivered the opinion of the Court. Concurring opinion filed by Wilner, J., at page 44 infra.

The question in this appeal concerns whether Prince George’s County may be liable for damages for personal injuries arising out of tortious conduct by two county police officers. The County maintains no, the trial judge agreed, and this appeal ensued. We agree with the trial court and shall affirm.

The record reveals that Ronald M. Cox, one of the appellants, alleged in his amended declaration that he was attending a party on July 20 or 21, 1979, in the area of Powder Mill Village. There were two police officers, supervising a dog, on duty in the same area and allegedly they commanded the dog to attack Ronald. The dog did as it was bade and injuries were suffered thereby by Ronald. It was also alleged that Ronald was beaten and further injured by the officers. Thereafter, a multi-count (seven) action was brought in the Circuit Court for Prince George’s County against the County, the appellee here, and the two officers. It would appear appellant’s action against the County was based on respondeat superior. The County demurred and, after a hearing thereon, the court sustained the demurrer without leave to amend. Judgment was duly entered by the court, which also certified, under Md. Rule 605 a, that there was no "just reason to delay appeal.”

On appeal the appellants pose two questions as follows:

1. Whether Prince George’s County may be held liable for the malicious acts of its police officers.
2. Whether a Title 42, Section 1983 action can be brought in the Circuit Court for Prince George’s County, Maryland.

With respect to appellants’ second question, appellants in their brief concede that it is moot in light of DeBleeker v. Montgomery County, 48 Md. App. 339 (1981); thus we need not address the issue.

As to appellants’ first question, appellants’ argument is that the County, through respondeat superior, can be liable for the malicious acts of its police officers which are done within the scope of their employment and that their amended declaration contained the appropriate allegations. Appellants concede that a finding of agency between the County and the police officers is a threshold hurdle to be cleared. In contending that they have successfully cleared the hurdle, appellants argue (1) that Wynkoop v. Hagerstown, 159 Md. 194 (1930), only "ostensibly” held that police officers are agents only of the State in which they are employed, not of the political subdivision in which they work, and (2) that, in any event, Wynkoop should no longer be followed. We disagree with appellants’ interpretation regarding their first argument.

The Court of Appeals, in Wynkoop, said in part:

"The protection of the citizen against pestilence, disease, violence, or disorder, is essentially a governmental function to be exercised by the state under its police power, through proper agents. And while in many cases it is difficult on the facts to mark the boundary between acts and duties which are in their essence governmental, and those which are of a corporate or municipal nature, that doubt does not exist in respect to the duties of agencies charged with the administration of the criminal laws, the conservation of the public peace, or the protection of the citizen from violence. But the acts of such agencies done in the performance of duties imposed upon them by law are almost everywhere regarded as governmental in their nature, and for the benefit of the entire public.
Accordingly it may be taken as settled that police officers, exercising directly the police power of the state, are governmental agents, that their duties are of a public nature, and that whether appointed by it or not they are not municipal servants or agents, and that municipalities for which they are appointed will not be responsible for their acts or omissions as police officers (43 C. J. 964; McQuillen on Mun. Corp., sec. 2837), whether done or omitted under a public law or a municipal ordinance, 19 R. C. L. 1099; Dillon on Mun. Corp. (5th Ed.), sec. 1656.” [Emphasis supplied.] Id. at 201.

In Quecedo v. Montgomery County, 264 Md. 590 (1972), after quoting the above passage from Wynkoop the Court of Appeals stated:

"We cited Wynkoop with approval and followed it in State, Use of Wilkerson v. Baltimore County, 218 Md. 271, 273, 146 A.2d 28 (1958). See Fowler v. Board of County Commissioners of Prince George’s County, 230 Md. 504, 507, 187 A.2d 856, 858, cert. denied, 375 U.S. 845, 84 S. Ct. 98, 11 L.Ed.2d 72, reh. denied, 375 U.S. 936, 84 S. Ct. 334, 11 L.Ed.2d 268 (1963).” Id. at 597.

In State, Use of Wilkerson v. Baltimore County, 218 Md. 271 (1958), another civil action against a county for a tort committed by a county police officer, the Court stated:

"The trial court held that the County was not liable for the alleged tort of the police officer, because it was exercising a governmental function when it employed him.
We think the Maryland law on the point was settled in the case of Wynkoop v. Hagerstown, 159 Md. 194. The rule there stated is supported by the great weight of authority. See Borchard, Government Liability in Tort, 34 Yale Law Journ. 229, 240; Prosser, Torts (2d ed.) § 109; Restatement of Torts, sec. 887, comment (c) and sec. 888, comment (c); 18 McQuillin, Municipal Corporations (3d ed.) §§ 53.79, 53.80. We find no merit in the appellants’ argument that Baltimore County somehow stands in a different position because of the adoption of its present Charter under Article XI-A of the Maryland Constitution, and Code (1957), Art. 25A, sec. 1. If, as the appellants argue, the rule ought to be changed so as to enlarge the liability of municipal corporations, it must be done by the Legislature and not by this Court. Baltimore v. State, 173 Md. 267, 273; Cox v. Anne Arundel County, 181 Md. 428, 433. Cf. Howard v. South Balto. Gen. Hosp., 191 Md. 617, 619; and Thomas v. Prince George’s County, 200 Md. 554, 559.” Id. at 273.

Again, in Bradshaw v. Prince George’s County, 284 Md. 294, 304 (1979), the Court of Appeals stated in pertinent part:

"In Wynkoop v. Hagerstown, 159 Md. 194, 200, 150 A. 447, 449-50 (1930), our predecessors observed that 'police officers ... are not its [a city’s] agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties.’ Wynkoop held that police officers, 'exercising directly the police power of the state, are governmental agents, ... they are not municipal servants or agents.’ Id. at 201, 150 A. at 450. Accord, Quecedo, id., State v. Baltimore, id.”

Whether Wynkoop, supra, should remain viable law today, in our view, is beyond our authority. We observe, however, that 51 years have passed since that decision was handed down and no legislation has been enacted to change it. We believe it is still viable law, and thus the County’s demurrer should have been, as it was, sustained.

Judgment affirmed.

Costs to be paid by appellants.

Wilner, J.,

concurring:

I concur in the result reached by the panel. As the law now stands, the case is controlled by the 51-year old decision of the Court of Appeals in Wynkoop v. Hagerstown, 159 Md. 194 (1930).

Notwithstanding that Wynkoop has been cited several times since 1930 by the Court of Appeals, with apparent (or at least tacit) approval, I believe that the doctrine announced in that case is outdated and ought to be reviewed again by the Court of Appeals. The Wynkoop Court held that a municipal police officer was not the agent of the municipality that hired him because he was engaged to enforce the police power of the State.

I find that to be rather strained, result-oriented reasoning. It ignores nearly every aspect of normal agency law for the sole purpose of immunizing local governments from the wrongful acts of their employees.

The police officers involved in this case were part of a county police department created by a county charter (art. XII, § 12) which itself was adopted pursuant to the direct authority of the State Constitution. They were hired by the county, paid by the county, and in every way were subject to county authority. The State of Maryland had no control whatever over them and could in no way influence the manner in which they performed their duties.

Prince George’s County, in its charter, has partially waived its right of sovereign immunity. The courts ought not, by judicial "logic,” supply that which the people of the county clearly said they do not want.


source: Caselaw Access Project

author: Orth, J.,

license: Public Domain

text:
    MARK STEWART HOWARD v. STATE OF MARYLAND GERALD MATTHEW LECOMPTE v. STATE OF MARYLAND
    [No. 697,
    September Term, 1981.]
    [No. 747,
    September Term, 1981.]

      Decided March 2, 1982.

      The cause was argued before Moylan and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Alan J. Goldstein, with whom were Horowitz, Oneglia, Goldstein, Foran & Parker, P.A. on the brief, for appellants.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Robert C. Bonsib, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

I.

Under the adversary system enjoyed in the administration of justice in this State, it is imperative that a nice balance be struck between responsibility for criminal conduct and the protection of Constitutional rights guaranteed to all persons. If the scale is weighed too heavily on either side, due process is eroded. The attainment of this delicate balance is especially appropriate with respect to searches and seizures. And, in light of the ever increasing variety and sophistication of devices enabling the clandestine interception of wire and oral communications and the efficacy of that tool in the everlasting fight against crime, it is particularly apropos when such a communication is sought to be seized. Recognizing this, the Congress of the United States adopted a comprehensive scheme governing in minute detail "wire interception and interception of oral communications.” 18 U.S.C.A. §§ 2510-2520. The General Assembly of Maryland, to implement the federal statute where called for, and to impose even stricter conditions in certain respects, also enacted legislation on the subject, in major part tracking the federal statute. Maryland Code (1974, 1980 Repl. Vol. § 10-401 through § 10-412, subtitle "Wiretapping and Electronic Surveillance,” of the Courts and Judicial Proceedings Article (hereinafter Courts Art.). Complying with the divers conditions prescribed by the statutes places a very real, albeit necessary, burden on the enforcement authorities applying for and carrying out an interception order and on the judge issuing it. Sanction for non-compliance is harsh. Both the federal statute, § 2515, and the State statute, § 10-405, in broad terms, prohibit the receiving in evidence at practically all proceedings any part of the contents of a communication, or any evidence derived therefrom if the disclosure of that information would be in violation of the statutes.

The burden of compliance is aggravated in Maryland due to the unusual stand taken in testing conformance with the conditions. Almost universally other jurisdictions are satisfied if there be substantial compliance with no prejudice shown. Maryland, however, distinguishes between the statutory conditions which apply before or during the interception (preconditions) and those which apply after the termination of the interception (post conditions). With respect to preconditions, Maryland demands strict compliance; substantial compliance is sufficient only in regard to post conditions. This came about by judicial fiat upon construction of the statutes by the Court of Appeals. In State v. Siegel, 266 Md. 256, 273-274, 292 A.2d 86 (1972), the Court, examining the validity of interception orders, explicitly rejected the substantial compliance standard and unequivocally declared:

"The statute 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).

In Spease and Ross v. State, 275 Md. 88, 338 A.2d 284 (1975), the Court, in determining that the provisions of a wiretap order and the federal law’s requirements as to the minimization of interceptions had been satisfied, clearly applied the substantial compliance standard. But it expressly affirmed Siegel: "Nothing in our opinion in this case is intended to depart in any way from our holding in Siegel.”Id. at 108, n. 3.

In Poore v. State, 39 Md. App. 44, 384 A.2d 103 (1978), this Court was obliged to construe Siegel and Spease upon claims that the decisions were in conflict. We found that the teachings of Siegel and Spease made it "obvious that there is a distinction between pre-order and post-order compliance. In the former, a defect will void the order and cause suppression of the evidence, but in the latter, a defect will not vitiate the order if there has been substantial compliance and no prejudice to the defendant is shown.” 39 Md. App. at 53-54 (emphasis in original). The Court of Appeals denied certiorari. 282 Md. 737 (1978). We explicated this view in Baldwin v. State, 45 Md. App. 378, 413 A.2d 246 (1980) ; aff'd, State v. Baldwin, 289 Md. 635, 426 A.2d 916 (1981) . In State v. Mayes, 284 Md. 625, 399 A.2d 597 (1979), the Court of Appeals iterated the dictate of Siegel. Observing that "the directive contained in this language has not been eroded by any decision of this Court over the intervening seven years,” it reaffirmed the propriety of the dismissal of the indictment in that case. 284 Md. at 640. But in State v. Bailey, 289 Md. 143, 422 A.2d 1021 (1980), the Court admonished that only upon "a superficial reading” of Siegel and Spease would there appear to be a conflict in the two cases "for no such conflict exists.” It pronounced that "[t]he cases are consistent and compatible with each other.” Id. at 153. The Court, quoting Siegel at 274, pointed out that Siegel concerned "'preconditions designed to protect appellee’s constitutional rights. ...”’ Id. In Spease, on the other hand, the order was valid on its face and all the statutory requirements were fulfilled. Id. The Court explained:

"The difference between the two cases is clear. The statutory provisions which require the wiretap order to conform to specific minimum guidelines are those which the legislature perceives to contain minimum safeguards to constitutional rights. Once the directives of the statute have been met and a valid order has been issued, compliance, at least in the area of minimization of unauthorized communications and service of inventory, can be judged by a more lenient substantial compliance standard.” Id. at 153-154.

To like effect is State v. Baldwin, 289 Md. 635, 642-643, 426 A.2d 916 (1981), in which the Court speaks of "the substantial compliance test of Spease. ” Thus, it is readily apparent that the Court of Appeals, although making no reference to the Poore and Baldwin decisions of this Court, was in accord with the view we had expressed in those cases, namely, that strict compliance was required as to preconditions while substantial compliance sufficed for post conditions. We understand this to be the present status of the law and shall apply it in deciding the instant cases.

II.

Mark Stewart Howard and Gerald Matthew Lecompte seek to set aside the judgments entered against them at separate trials in the Circuit Court for Prince George’s County upon their convictions of violations of the Controlled Dangerous Substances Law. They join in this appeal and jointly urge that the trial court erred in denying their motions to suppress evidence derived from wire interceptions. They claim that receipt of the challenged evidence in their respective trials violated the federal and State statutes and point to a gaggle of preconditions relating to the interceptions, alleging that there was not strict compliance as to them. Their contentions go to the applications for the interception orders, to the affidavits supporting the applications, to the orders issued and to the reports submitted on the progress of the interception. We agree that the conditions on which they rely apply before or during the conduct of the interception and, therefore, as preconditions, must be followed without the slightest deviation from their prescribed paths. We do not agree, however, that there was not strict compliance in regard to them. We believe that the enforcement and judicial authorities here involved carried out the dictates of the interception statutes to the letter as Siegel requires. We have carefully considered the contentions of appellants, as best we are able to sort them out and understand them as presented, and are not persuaded to the contrary. We affirm and give our reasons.

III.

We are concerned with three orders which authorized wire interceptions. The first was issued on 1 February 1980 by a judge of the Circuit Court for Howard County (Order No. 1). The second was issued on 10 March 1980 by a judge of the Circuit Court for Anne Arundel County (Order No. 2). The third was issued on 10 April 1980 by the judge who issued Order No. 2, and extended that Order (Order No. 3).

Section 2518 (3) of the federal law, and § 10-408 (c) of the State law, in essentially the same language, permit a judge upon request to enter an ex parte order authorizing interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting. Whether to enter an order for which application has been made is in the discretion of the judge. But, if he decides to enter it, he can validly do so only upon certain determinations. The state statute, tracking the federal law, provides that the order may be entered:

"if the judge determines on the basis of the facts submitted by the applicant that:
(1) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 10-406 of this subtitle;
(2) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
(3) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(4) There is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by this person.” Courts Art. § 10-408 (c).

Each of the orders entered here contains certain conclusions reached by the issuing judge. The first four conclusions, expressed in identical language in each order, are:

"(1) There is probable cause to believe that the below described individuals have committed, are currently committing, and are about to commit violations of the Controlled Dangerous Substances Laws of the State of Maryland, including the unlawful manufacturing, possession, distribution and conspiracy of Controlled Dangerous Substances violations of Article 27, Sections 276-302, of the Annotated Code of Maryland;
(2) There is probable cause to believe that the below described facilities have been, are being, and will continue to be used by the suspects for said crimes; and the use of the hereinbefore described electronic listening and recording devices, in order to intercept and record the hereinbelow specified communications, is necessary and essential in order to gain evidence leading to the solution of these crimes, to the identity of other persons with whom the described persons are working; and in order to prevent the continuation of said crimes; and
(3) That normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried or to be too dangerous. Such evidence, in item #2, cannot otherwise be obtained and such prevention measures cannot be exercised by alternative means than by interception as requested; and
(4) There is probable cause to believe that the facilities from which the hereinbelow described communications are to be electronically intercepted and recorded are being used and are about to be used in connection with, and in furtherance of the commission of the aforesaid crimes by the below described individuals....”

The seventh and last conclusion in each order reads in essence:

"(7) The facts and circumstances recited in the Application and in the Affidavit in support thereof and incorporated by reference therein do satisfy me that there is probable cause and furnish a proper legal basis for the issuance of this Ex Parte Order and justify the degree of intrusion sought.”

Appellants, below and on appeal, allege that the orders are defective because they do not reflect the determination required by § 10-408 (c) paragraph (2) of the State law (§ 2518 (3) paragraph (b) of the federal law). They concede that the orders "contain every required finding as specified in [18 U.S.C.A.,] Section 2518 (3) and [Courts Art.,] Section 10-408 (c) except for this finding.” Below, they also expressly conceded that the respective affidavits showed sufficient probable cause for the judge to reach the conclusion called for by paragraph (2).

The trial court believed that the general, catch-all finding of probable cause set out in the seventh conclusion in the orders was sufficient to reflect that the issuing judge had made the determination required by subsection (c) paragraph (2). We need not decide whether the rationale relied on by the trial court will bear up under the strict compliance test. We think that the orders otherwise showed that the issuing judge determined that there was "probable cause for belief that particular communications concerning that offense will be obtained through the interception.” Conclusions (1), (3), and (4) in the orders clearly reflect, as appellants concede, that the issuing judge made the determinations required by paragraphs (1), (3), and (4), respectively, of subsection (c), section 10-408 (18 U.S.C.A. § 2518 (3) (a) (c) and (d)).

The judge determined, as set out in conclusion (2) of the order, that there is probable cause for belief that "the facilities have been, are being, and will continue to be used by the suspects” for committing crimes proscribed by the Controlled Dangerous Substances Laws, and that the interception and recording of specified conversations” is necessary and essential in order to gain evidence leading to the solution of these crimes, to the identity of other persons with whom the described persons are working and ... to prevent the continuation of said crimes.” Ipso facto he has determined, as required by the statutes, that "particular communications concerning that offense will be obtained by the interception.”

This is no more than a common sense reading of the order conclusion (2), and the strict compliance standard is no wise violated by the application of common sense. Strict compliance can be demonstrated by other than the exact words of a statute. We hold that with respect to the directions of Courts Art. § 10-408 (c) and 18 U.S.C.A. § 2518 (3) for the issuance of an interception order, the orders here did not deviate from the dictates of the statutes.

Appellants also suggest that the orders are defective in that they do not contain specific factual findings on which the conclusions are based. Both the state and federal statutes provide that the determinations of the issuing judge are to be "on the basis of the facts submitted by the applicant.” § 10-408 (c), § 2518 (3). Neither statute prescribes that the factual bases be set out in the order. See § 10-408 (d), § 2518 (4). Paragraph (7) of each order, as we have seen, was a general finding of probable cause for the issuance of the order and for the degree of intrusion. The facts and circumstances recited in the applications and affidavits, incorporated in the orders by reference, were sufficient to satisfy the issuing judge. Absent a statutory requirement or, in the circumstances, any logical need for such findings appearing in the order, we see no merit in appellant’s contention.

IV.

Appellants attack the Howard County order as "overbroad and unspecific.” They allege that, contrary to the declaration in paragraph (1) of the conclusionary part of the order, there was no probable cause on the basis of facts shown by the applicant to support the determination that controlled dangerous substances were being manufactured, as distinguished from distributed and possessed. We do not agree. "Manufacture” is broadly defined by the Controlled Dangerous Substances Act and "includes any packaging or repackaging of [a controlled dangerous] substance or labeling or relabeling of its containers....” Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 277 (p). It was clear in the application and incorporated affidavit that from the quantity of the substances from time to time involved, the size of the buys made by the undercover agents, and the conversations had and overheard, a major supplier was concerned. There was ample probable cause for belief by the judge that a controlled dangerous substance was being "manufactured” or that there was a conspiracy to so "manufacture” as that word is defined by the statute. However, even assuming arguendo, that there were no facts sufficient to show probable cause for a belief that there was the manufacturing of a controlled dangerous substance, the operating portion of the order, setting out the specific orders, spoke only in terms of the distribution and conspiracy to distribute controlled dangerous substances.

Appellants also support their contention that the order was "overbroad and unspecific” by urging that the facts submitted showed that cocaine was the only controlled dangerous substance involved, and that the order did not adequately specify particular offenses. We think the references to controlled dangerous substances and to violations of the Controlled Dangerous Substances Laws with Maryland Code citations were sufficient. We agree with the trial judge that "the generic identification of controlled dangerous substances, rather than the more specific identification of cocaine” did not affect the validity of the order. The statutory requirements for the issuance of an interception order speak of "a particular offense enumerated in § 10-406 of this subtitle. ...” § 10-408 (c) (1). The offenses enumerated in § 10-406 include "dealing in controlled dangerous substances, or any conspiracy to commit [that offense].” And the comparable federal provisions include in the designation of "a particular offense,” § 2518 (3) (a), "dealing in narcotic drugs, marihuana or other dangerous drugs... or conspiracy to commit any of the foregoing offenses.” § 2516 (1) (e) (g). "The Congress certainly indicated its intent that, within certain limits, state judges could broadly delineate the offenses for which they were granting authorization to tap....” State v. Mayes, supra, 284 Md. at 635. See United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979), cert. denied, 446 U.S. 935 (1980); United States v. Steinberg, 525 F.2d 1126 (2d Cir., 1975), cert. denied, 425 U.S. 971 (1976). We do not think those limits were exceeded here. We reject this contention of appellants.

Appellants present what appears to be a companion contention. They claim that the affidavits were "defective in that they failed to correctly specify the controlled dangerous substances with which the named parties are alleged to be involved.” In the prior contention, the attack went to the probable cause to support the orders. As to this contention, the argument seems to be that the affidavits were too specific to justify the orders. Appellants urge that because the backbone of the affidavits concerned dealings in cocaine as the controlled dangerous substance, the affidavit should have requested an application for intercepting conversations relating to cocaine rather than to "controlled dangerous substances.” For many of the reasons set out in disposing of the prior contention, it was not necessary, in light of the facts recounted in the affidavits that the applications and the orders be as restrictive as appellants would have them. See State v. Nelson, 46 Md. App. 104, 109, 415 A.2d 865 (1980), in which we found the police had shackled themselves by "an unnecessarily restrictive order.” See also United States v. Tortorello, 480 F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866 (1973); United States v. Armocida, 515 F.2d 29 (3d Cir.), cert. denied, 423 U.S. 858 (1975). We think that the applications, affidavits, and orders were sufficiently specific with respect to the crimes alleged to satisfy the mandates of the governing statutes.

V.

Appellants direct another salvo at the orders with the claim that they "are defective in that they are based on petitions and affidavits which do not provide a full and complete particular description of the type of communication sought to be intercepted... .” They look to the federal and State statutes, each of which require that the application for an interception order shall include "[a] full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including ... a particular description of the type of communications sought to be intercepted.. ..” 18 U.S.C.A. § 2518 (1) (b) (iii), § 10-408 (a) (2) (iii). The statutes also require, in the precise words of the directive relating to an application, that each order authorizing any interception specify such a description, and, in addition, "a statement of the particular offense to which it relates.” § 2518 (4) (c), § 10-408 (d) (iii). The orders here strictly complied with these dictates. They stated, with minor variations,

"that the type of communications sought to be intercepted are telephonic conversations, and shall be and the same hereby are particularly described as follows: conversations and communications of the above described subjects and those others as yet unknown involving violations of the Controlled Dangerous Substances Laws, violations of Article 27, Sections 276-302, of the Annotated Code of Maryland to and from telephone number (301) 465-2513; more specifically:
(1) The identity of all participants, particularly the higher-ups in this distribution and conspiracy to distribute Controlled Dangerous Substances;
(2) The degree of their participation in this distribution and conspiracy;
(3) The addresses and telephone numbers of all participants so that the location of any criminal activity with regards to this conspiracy and distribution of Controlled Dangerous Substances can be determined;
(4) All details as to the manner of shipment or movement of quantity of Controlled Dangerous Substances, source of these Controlled Dangerous Substances, methods of eluding law enforcement detection, and whether or not this is one in a series of similar criminal conspiracies for distribution of the Controlled Dangerous Substances;
(5) And other evidence necessary to the prosecution and conviction of the above named individuals. Upon the attainment of the above stated objective, even if prior to the termination of the Order, the interception and recording of conversations of the above described subjects will be terminated.”

These specifics tracked the objectives of the wiretap set out in the application, which were in turn supported by a factual basis spread out in the affidavit. We agree with the lower court that the first four specifics "all relate to proper purposes and authorized objectives, distribution and conspiracy to distribute controlled dangerous substances. They list all aspects of proper reception.... All have proper, have limited provisions.” Appellants obliquely argue that the fifth specific "relate[s] to all crime and is thus overly broad.” The trial court applied the rationale of the maxim ejusdem generis and found that specific (5) related to the distribution and conspiracy to distribute controlled dangerous substances. Whether that maxim or the broader maxim noscitur a sociis be appropriate, we are in accord with the finding. Considered in the frame of reference of the preceding specifics, the application and the affidavit, it is manifest that the fifth specific is limited to the crimes which are the subject of the first four specifics.

We hold that the applications and the orders described the type of communications sought to be intercepted with the particularity commanded by the statutes.

VI.

The federal statute, § 2518 (5), and the State statute, § 10-408 (e), each prescribe that "[e]very order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable. ...” The orders here contained that provision. Order No. 1 was entered on 1 February 1980 (no time of day designated) and set the start of the authorization as 6 February 1980 at 9:00 a.m. Order No. 2 was entered on 10 March 1980 at 1:52 p.m. and set the start of the authorization as 12 March 1980 at 9:00 a.m. Appellants assert that the orders violated the "as soon as practicable” directives by the interval permitted between entry of the order and execution of the interception authorization.

The orders designated the means of interception and the equipment to be used. A physical wiretap connection was to be placed from police located terminal appearances of a certain telephone number. Intercepted communications were to be transmitted to a location convenient to the police by a lease-line to which the physical wiretaps were attached. Recordings of the intercepted telephonic communications were to be by current activated tape recorders attached to the terminals of the lease-line. A device known as a "Dialed Number Decoder” was to be used to ascertain outside telephone numbers called on the tapped telephones. It was imperative that all of this be accomplished with the utmost care and caution, for, as the order stated, if either prior or simultaneous notice of the authorization for electronic interception and recording be given to the [suspects], the purpose and objective of the investigation would be frustrated, the commission of the crimes would be affirmatively facilitated and the perpetrators would be insulated from detection. The success of the interception efforts was vital since "normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried or to be too dangerous.” Therefore, the means of interception were to be set up with the help of the telephone company, which was ordered to furnish the police "forthwith, all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the [telephone company was] according to the person or persons whose communications are to be intercepted.” The telephone company was to be compensated at the prevailing rates.

In light of all of this, it is manifest that as to both Order No. 1 (with the intervening weekend) and Order No. 2, the length of time between the entry of the respective orders and the execution of the interception authorizations was indeed in strict compliance with the "as soon as practicable” directives of the statutes.

VII.

The federal law, § 2518 (5), and the State law, § 10-408 (e), share a dictate that every interception order and extension thereof "must terminate ... in any event in thirty days.” The pertinent dates with respect to the orders here are:

Order No. 2 10 March 1980 at 1:52 p.m. 12 March 1980 at 9:00 a.m. 10 April 1980 at 11:59 p.m.
Order No. 3 10 April 1980 at 12:48 p.m. 10 April 1980 at 11:59 p.m. 9 May 1980 at 11:59 p.m.

Order No. 1 and Order No. 2 each terminated more than thirty days from the date they were issued but "in thirty days” from the date specified for the execution of the authorization to intercept. Order No. 3 was within the statutory prescription as to either beginning date.

Appellants would have the prescribed thirty days start to run from the date the orders were issued, rendering them invalid as not in compliance with the thirty day precondition. We do not accept that view. Immediately preceding the thirty day dictate is an alternative termination provision concerning the attainment of the authorized objectives, so that the entire condition reads that every order and extension thereof "must terminate upon attainment of the authorized objective, or in any event in thirty days.” Of course, the authorized objective usually can be attained only after the interception has begun. The interception must begin as soon as it is practicable to put the interception devices in operation. We find it clear that the legislative bodies intended that the thirty day period run from the beginning of the actual interception, not from the issuance of the order. If there be any doubt we need look no further than the explanation in the Senate report, U.S. Cong, and Adm. News (1968) 2192: "The period of authorized interception is intended to begin when the interception — in fact — begins and terminates when the interception — in fact — terminates.”

VIII.

(1)

Appellants argue that the orders were not in strict compliance with Courts Art. § 10-408 (f):

"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.”

Questions relative to this sub-section were laid to rest in State v. Baldwin, supra. The Court held that the provisions of § 10-408 (f) constitute "a mandatory precondition for obtaining valid intercept authority....” 289 Md. at 643. Although the order must require that reports be made, it need not spell out the time intervals for reporting, provided the judge gives the monitoring agents instructions, in writing or otherwise, at the time the order was executed, or thereafter, designating the time period for the reports to be made. But, the Court declared that "[a] written directive independent of the wiretap order itself, given at the time the order is executed, is ... the preferable [even though not required] method of compliance with the statute....” Id. at 644.

Each of the orders here, for compliance with § 10-408 (f), orders that the State’s Attorney concerned

"or his designee shall advise this Court of the progress of the interception process, and the current status of the investigation in writing on each Monday throughout the course of the interception process, and shall reasonably record the date, time, and general content of such progress reports.”

The court below found that the question before him was whether the language of the order calling for reports "of the progress of the interception process and the current status of the investigation” had the same connotation as the language of the statute requiring reports "showing what progress has been made toward achievement of the authorized objective and the need for continued interception.” He thought that the order demanded even more than the statute. He observed, "Certainly the current status of the investigation and progress of the interception process cover both of the requirements; that is, progress towards achieving the objective and need for continued interception.” We had the language of the orders here before us in Nye v. State, supra. In an obiter dictum we expressed our conclusion that "a commonsense review of the language of the orders suggests that the police were being directed to apprise the issuing judge of the progress of the interception; i.e., the progress toward the authorized objective.”, 49 Md. App. at 118 (emphasis in original). We still see it that way, and by this case elevate Nye’s dictum to a holding. Appellants complain that the conclusion that the orders comply with the reporting mandates of the statute can be reached only by way of the substantial compliance rule. We do not agree. The orders complied with the statute in requiring reports to the issuing judge, in writing, at designated intervals. Being apprised each Monday of "the progress of the interception process and the current status of the investigation” would permit the judge "to evaluate what progress [was] being made toward achievement of the authorized objectives and the need for continuing interception.” State v. Baldwin, 289 Md. at 643. We think that the reporting requirements of the orders were in strict compliance with the reporting provisions of the Maryland statutes. As we have indicated, strict compliance does not compel that the precise words of the statute always be used.

(2)

Appellants also attack the progress reports submitted. They allege that "[the reports] did not contain enough specific facts about the investigation aside from the interceptions to comply with the requirements that they show progress toward achievement of the authorized objective and continued need.” And they complain that the reports "were not prepared by the principal prosecuting attorney, as required by Title III, Section 2516 (2).”

(a)

We summarily dispose of the complaint about who prepared the reports. Although the issue was raised below by appellants in a pretrial memorandum of law, the transcript of the suppression hearing does not reflect that it was pursued, and so it was neither tried nor decided below. Md. Rule 1085. But, assuming arguendo that it is properly before us, it is utterly devoid of merit. It takes no keen analysis of the statutes to appreciate that neither of them has a requirement that the progress reports be prepared by "the principal prosecuting attorney.” The section of the federal law cited by appellants, § 2516 (2), concerns only an application for an order, as does the companion provision in the State law, § 10-406. There was no violation of the statutes and no departure from the directions in the orders with respect to who prepared and signed the progress reports.

(b)

In regard to the alleged defect in the contents of the reports, as we have seen, § 10-408 (f) of the State law and § 2518 (6) of the federal law both provide that when progress reports are made they show "what progress has been made toward achievement of the authorized objective and the need for continued interception.” The progress report requirements are to be read in connection with the directives, § 2518 (5) of the federal law and § 10-408 (e) of the State law, that interception must terminate at the earlier of attainment of the authorized objective or 30 days. Thus, the progress reports enable the issuing judge to determine whether the interception authorization should be terminated before the expiration of thirty days. Each of the orders specified the objectives authorized and dictated that authorization to intercept "shall terminate and the same is hereby terminated upon attainment of [them].”

The objectives set out were to ascertain:

"(1) the identity of all participants, particularly the higher-ups in this distribution and conspiracy to distribute Controlled Dangerous Substances, (2) the degree of their participation in this distribution and conspiracy, (3) the addresses and telephone numbers of all participants, so that the location of any criminal activity with regards to this conspiracy and distribution of Controlled Dangerous Substances can be determined, (4) all details as to the manner of shipment or movement of quantity of Controlled Dangerous Substances, source of these Controlled Dangerous Substances, methods of eluding law enforcement detection, and whether or not this is one in a series of similar criminal conspiracies for the distribution of the Controlled Dangerous Substances, and (5) other evidence necessary to the prosecution and conviction of the above named individuals [with respect to Controlled Dangerous Substances].”

The State has fairly summarized the contents of the progress reports:

"In Howard County, four progress reports were submitted to the court which clearly demonstrated the progress toward the achievement of these authorized objectives and the need for continued interception. The report dated February 11, 1980 detailed the first six days of operation and confirmed that drug conversations were occurring, although at that time, Sampson, the main target, did not have any cocaine on hand. The nature of the involvement of various other unidentified individuals had not yet been determined. The police believed that Sampson’s sister was involved in the drug distribution. The report indicates that the investigation was in its elementary stages, and clearly implies that further interceptions were necessary to achieve the objectives. The second report on February 18, 1980 indicated that substantial progress was being made toward the identification of a source of supply, one of the major objectives of the investigation. The police were able to identify Douglas Monroe as the person referred to in the conversations as "Shorty” and that Monroe was a drug supplier. The report stated that additional investigation was being conducted with respect to Monroe to determine the nature of his participation with Sampson and to ascertain whether the police should attempt to obtain a wiretap on Monroe’s phone. The report of February 25, 1980 indicates that Monroe apparently had a steady supply of CDS and wanted to distribute it to Sampson and other unknown persons. The police are attempting to identify the unknown persons dealing with Sampson. The final Howard County report dated March 3, 1980 stated that the tap had been terminated because the police believed they had achieved their objectives on that level and were applying for an ex parte order on Monroe’s phone.
The first progress report in Anne Arundel County, dated March 17,1980, stated that the identity of certain individuals intercepted had not yet been ascertained. According to the report, Monroe had spoken with a number of persons concerning drugs and attempts were being made to identify these individuals. Monroe’s drug supplier had not been identified. However, the police followed Monroe to Virginia where he was supposed to receive some cocaine. The second report dated March 24, 1980 states that Monroe had become paranoid about the police and that he had possibly installed another telephone. More importantly, another individual, arriving from Florida on an airplane, was suspected of being Monroe’s partner in the drug business. However, the nature of their relationship had not yet been determined. Most significant was the fact that Monroe had been in contact with his source but, because names had not been exchanged, the source remained unidentified. Further investigation disclosed that a known cocaine distributor was residing at a certain address in Virginia. The report dated March 31, 1980 revealed that Monroe was known to still be meeting with his drug outlets. The report stated that one Gerry Lecompte has surfaced as Monroe’s possible drug supplier and that an additional investigation with respect to Lecompte would be made by attempting to secure a pen register on his phone. The final report dated April 7,1980, indicates that, although much effort was expended to determine when Monroe had obtained his latest supply of cocaine, he apparently received it without detection by the police. According to the report, it was anticipated that Monroe would obtain another supply because the interception disclosed that he was attempting to collect money owed to him for drugs. The report stated that there was still a need to obtain additional information concerning Lecompte in an effort to prove that he was Monroe’s supplier. An extension order was signed on April 10, 1980, but before any progress reports were due, it was terminated on April 12, 1980.”

With these progress reports, the issuing judges were able to reach a considered determination whether the authorized interception should be terminated. The reports contained factual data adequate to show what progress had been made toward achievement of the authorized objectives and the need for continued interception. In other words, the reports were sufficient to assure that the use of the interception order was judicially controlled and would continue no longer than necessary. On the basis of the reports, we believe the issuing judges did not abuse their discretion in permitting the interception authorizations to continue. We hold that the progress reports furnished no basis for the trial judge to grant the motions to suppress.

IX.

We hold that the trial court did not err in denying appellants’ motions to suppress the evidence, and its judgments entered are affirmed.

Judgments affirmed.

Costs to be paid by appellants.

      . Although the Congress of the United States has preempted the field by the federal statute, the preemption does not extend to State statutory provisions which are more stringent than the federal law. "[U]nder no circumstances is [the State] law enforceable if it is less restrictive than the federal statute so that it grants the governing power more rights at the expense of its citizens. ... Of course, a state act which is more closely circumscribed than the federal law in granting eavesdrop authority is certainly permissible.” State v. Siegel, 266 Md. 256, 271-272, 292 A.2d 86 (1972).

      . See article by Richard P. Gilbert, Chief Judge of this Court, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U. Balt. L. Rev. 183, 205-207 (1979).

      . We have, of course, as is our duty, unwaveringly honored the Siegel directive. "We have not deviated in the slightest from Siegel’s prescribed path.” Baldwin v. State, 45 Md. App. at 379. See for example, Nye v. State, 49 Md. App. 111, 430 A.2d 867 (1981); Baldwin v. State, supra; Ward v. State, 40 Md. App. 410, 392 A.2d 559 (1978); Shingleton v. State, 39 Md. App. 527, 387 A.2d 1134, cert. denied, 283 Md. 738 (1978); Poore v. State, supra; Calhoun v. State, 34 Md. App. 365, 367 A.2d 40 (1977).
      Early on, with regard to a wiretap order, we observed that "the provisions of the [federal] act, both standing alone and when considered in the light of its legislative history ... concede no exceptions.” State v. Siegel, 13 Md. App. 444, 465, 285 A.2d 671, aff'd, 266 Md. 256, 292 A.2d 86 (1972).

      . Howard was convicted at a court trial upon stipulation of facts of possession of cocaine with intent to distribute (1st count) and possession of cocaine (2d count). The court merged the conviction under the second count into the conviction under the first count and imposed a sentence of 4 years and a fine of $5,000 and costs.
      Lecompte was convicted upon trial by jury of conspiracy to distribute cocaine (2d count), conspiracy to possess cocaine with the intent to distribute (3d count) and conspiracy to possess cocaine (4th count). The court merged the conviction under the third count into the conviction under the second count and the conviction under the fourth count into the convictions under the second and third counts. It imposed a sentence of 10 years and a fine of $25,000 and costs.

      . As set out supra, conclusion (1) was that the issuing judge found probable cause for belief that there were being committed violations of the Controlled Dangerous Substances Laws of Maryland "including the unlawful manufacturing, possession, distribution and conspiracy of Controlled Dangerous Substances violations of Article 27, Sections 276-302, of the Annotated Code of Maryland....”

      . The first of February 1980 was a Friday. Thus, a weekend intervened between the entry of the order and the start of the interception.

      . Order No. 3, extending Order No. 2, was not challenged below on this ground, as it called for authorization to intercept to be executed immediately upon entry of the interception order.

      . Each order contained the alternate termination condition in these words: "[N]otwithstanding the authorization to intercept for a designated period contained in this authorization, such authorization shall terminate and the same is hereby terminated upon attainment of the objectives authorized herein....”
      Each statute, in addition to prescribing affirmatively that the termination conditions appear in every order, also expressly forbids that an order "authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, [or] in any event longer than thirty days.” 18 U.S.C.A. § 2518 (5); Courts Art. 10-408 (e).

      . The Maryland statute is more restrictive than the federal statute in this respect. 18 U.S.C.A. § 2518 (6) provides:
      "Whenever an order authorizing interception is entered pursuant to this chapter ..., the order may require reports to be made to the judge who issued the order showing what progress had been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.” (emphasis added).

        See State v. Baldwin, 289 Md. 636, 641-642, n. 1, 426 A.2d 916 (1981).


author: Weant, J.,

text:
    IN RE: DAVID D.
    [No. 701,
    September Term, 1981.]

      Decided March 2, 1982.

    The cause was submitted on brief to Moore, Liss and Weant, JJ.
    Submitted by Maureen O’Ferrall Gardner, Assistant Attorney General, Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Perry J. Becker, Assistant State’s Attorney for Prince George’s County, for appellant.
    No brief filed for appellee.
   Weant, J.,

delivered the opinion of the Court.

David D., the appellee, was charged in juvenile petition 449-81 with tampering with a motor vehicle, damaging a motor vehicle, and destruction of property. At a hearing on 22 May 1981 the petition was dismissed for lack of jurisdiction in the Circuit Court for Prince George’s County, sitting as a juvenile court. The State of Maryland filed a timely appeal to this Court.

On appeal the state asks a single question:

Whether the complainant in a juvenile action is entitled to rely on the mailing presumption of Maryland Rule 306 (c) (3) when filing an appeal pursuant to Courts Article, § 3-810 (h) (1) once the juvenile intake officer denies authorization to file the petition?

Appellee was charged on 11 December 1980. The Juvenile Services Administration received the case on 14 January 1981, and declined to file a petition against appellee at the intake level. On 22 January 1981 notice that the intake officer would not prosecute was mailed to the concerned parties and this notice presumably was received on 23 January 1981. The arresting officer, Craig James Hickerson, decided to appeal the decision not to prosecute to the state’s attorney’s office; he signed the necessary form on 4 February 1981, and mailed it on 4 or 5 February 1981. The state’s attorney’s office received the form on 9 February 1981.

The trial court dismissed the petition for non-compliance with Cts. & Jud. Proc. Code Ann. § 3-810 (h) (1), which requires that the state’s attorney’s office receive notice of appeal within 15 days after the mailing of the intake officer’s decision. The court held that Maryland Rule 306 did not apply. We disagree with that decision.

Since juvenile proceedings are civil, In Re: Appeal No. 544, 25 Md. App. 26, 29, 332 A.2d 680, 682, cert. denied, 275 Md. 751 (1975), the Maryland Rules of Procedure regarding civil cases apply to juvenile proceedings, see In Re: Appeal No. 769, 25 Md. App. 565, 570, 335 A.2d 204, 208, cert. denied, 275 Md. 751 (1975). Maryland Rule 306 provides:

c. Method of Service — On Attorney — On Party.
3. Presumptions in case of service by mail.
Service by mail shall be considered as having been made one day after the day of mailing, if in the same city or county, and one day additional for each 500 miles or fraction thereof between the place of mailing and the place of address. [Footnote added.]

We hold that the statutory mailing presumption Rule 306 (c) (3) is applicable to juvenile proceedings.

Officer Hickerson mailed from Bladensburg the notice of appeal form on February 4th or 5th. He was entitled to rely on the one day mailing presumption, which means the notice was presumed to arrive in the state’s attorney’s office in Upper Marlboro on February 5th or 6th, the 14th or 15th day after the intake officer’s decision. We find that Officer Hickerson complied with Cts. & Jud. Proc. Code Ann. § 3-810 (h) (1) and that therefore the trial court should not have dismissed the action. We are constrained to reverse the judgment of the Circuit Court for Prince George’s County and to return the instant case to that court for trial.

Judgment reversed and remanded for trial.

Costs to be paid by the appellee.

      1. In this case the distance in question is approximately fifteen miles.

      . It may be that the one day presumption is no longer realistic in light of the delays presently experienced in our mail delivery. Nonetheless, Rule 306 still reflects more efficient days.


author: Liss, J.,

text:
    ATLANTIC RICHFIELD COMPANY v. CORNELIUS F. SYBERT, JR. et al.
    [No. 718,
    September Term, 1981.]

      Decided March 2, 1982.

      The cause was argued before Mason and Liss, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      John F. Wilson, III, with whom was Charles M. Preston on the brief, for appellant.

      Thomas A. Garland for appellees.
   Liss, J.,

delivered the opinion of the Court.

This appeal arises out of a declaration filed by Sybert, Sybert and Nippard, the appellees herein, all of whom are attorneys at law duly qualified to practice their profession in the State of Maryland, against the appellant, Atlantic Richfield Company (hereinafter Arco), a Pennsylvania corporation duly qualified to do business in the State of Maryland. The suit, filed in the Circuit Court for Howard County, alleged a claim for real estate commissions arising out of the negotiation of a contract of sale between Arco and Belvoir Terminals Corporation, a wholly owned subsidiary of the Citadel Corporation, a client of Mr. Nippard. The transaction involved the sale of certain real estate and facilities owned by Arco in Virginia to Citadel’s subsidiary corporation at a price in excess of three million dollars and a claim for real estate commissions in the amount of $312,500. By appropriate motion on behalf of the appellant the case was removed from Howard County to the Circuit Court for Carroll County and was tried, without the intervention of a jury, before Judge Donald J. Gilmore. At the conclusion of the case Judge Gilmore awarded a judgment in favor of the appellees in the amount of $312,500 and it is from this judgment that this appeal was seasonably filed.

The facts in this case are in some particulars undisputed and in others, hotly contested. In order to understand the complex legal issues in dispute between the parties it is necessary to state the facts rather fully. In 1972 Arco had an option to purchase certain real estate situated in Howard County, Maryland (hereinafter the "Schultz property”) on which it planned to install certain storage facilities in connection with a pipeline terminal to be constructed on the property. Arco’s plans to exercise its option were subject to its ability to secure a special exception and variance from the Howard County Board of Appeals which would substantially increase the permissible storage capacity of the terminal to be constructed on the property.

Cornelius F. Sybert, Jr. was employed by Arco to secure the necessary variance and special exception from the Howard County Board of Appeals. Sybert, with the assistance of George Tracy, an employee of Arco, presented Arco’s case to the Board of Appeals which denied the variance and special exception. An appeal was thereupon taken to the Circuit Court for Howard County by certain of the protestants, who appeared in the proceedings before the Board. The action of the Board was revised. A further appeal was then noted to this Court and was still pending at the time of the initiation of the instant proceedings.

Mr. Tracy and Mr. Leonard Berkowitz, another employee of Arco, had maintained liaison throughout the proceedings involving the "Schultz property” with Mr. Sybert. Before a final disposition of the appeal to this Court, Tracy advised Sybert that Arco was uncertain whether it would actually develop the "Schultz property” even if it received final approval for the variance and special exception.

Mr. Nippard, in the interim, had been contacted by Roger Koehneke, a vice president of Citadel Corporation, for the purpose of securing a parcel of land in Howard County suitably zoned for tank farm use. Nippard was to represent Citadel in securing the necessary approvals for the establishment of storage facilities to be operated in conjunction with a pipeline terminal. Nippard engaged the services of Ellsworth lager, a local real estate dealer, to locate an appropriate site. lager did in fact locate a suitable piece of real estate owned by Contee Sand and Gravel Company, situated on the same pipeline which traversed the "Schultz property” on which Arco had an option and tentative zoning approval.

Because Arco had indicated its uncertainty as to the future of the "Schultz property”, Sybert and Nippard arranged for a meeting between Tracy and Koehneke to discuss their mutual interests. Before the meeting between Tracy and Koehneke began, Sybert and Nippard met privately with Tracy to discuss the question of compensation to be paid to Sybert and Nippard in the event the meeting between Tracy and Koehneke resulted in the sale of the "Schultz property” by Arco to Citadel. In the course of that meeting Tracy advised Sybert and Nippard that in the event Arco was unwilling to sell the "Schultz property” to Citadel, Arco owned and was offering for sale two other properties which might be suitable for Citadel’s needs, i.e., properties located on Key Highway in Baltimore City and Fort Belvoir, Virginia. Tracy discussed with Sybert and Nippard several alternative possibilities involving these properties such as the possibility of a lease or joint venture but it was finally agreed upon, according to Sybert and Nippard, that in the event of a sale of any of the properties that Arco would pay the "usual” or "customary” commission. Tracy’s recollection of the discussion with Sybert and Nippard was that he did attend a meeting at appellees’ offices sometime in October of 1974 to discuss the "Schultz property” and that at that meeting he mentioned that appellant’s Belvoir Terminal and Key Highway Terminal in Baltimore might be available for sale in the near future. Tracy explained that the "Schultz property,” Belvoir Terminal and Key Highway Terminal were interrelated for appellant’s total distribution picture and the ultimate outcome of the "Schultz property” would have a bearing on the availability of either or both the other properties. Tracy admitted meeting privately with Sybert and Nippard before meeting the Citadel representative but stated that commissions were not discussed as a form of compensation for the appellees. He testified he never agreed to pay brokerage commissions for any possible sale of Belvoir Terminal and that he did not have any authority involving any aspect of the sale of Belvoir Terminal or any other surplus real estate owned by appellant.

George Tracy’s title in Arco’s corporate structure was "Real Estate Manager, Special Projects” and he was required to report directly to one of Arco’s vice presidents who was designated as "Manager of the Distribution Department.” Arco’s corporate procedure to place property owned by it on the market for disposition was to transfer the transaction to another individual in the "Manager of Distribution” department named Richard Erdlitz. Some time after Tracy’s meeting with Koehneke (as arranged by Sybert and Nippard), Mr. Tracy wrote a letter to Sybert, with a copy to Mr. Erdlitz, in which he stated that the "Schultz property” had an uncertain future with Arco. The letter further stated:

As I did advise you and Mr. Koehneke, our marine terminal at Key Highway and Lawrence St., Baltimore, Md., and the pipeline terminal at Belvoir, Virginia will both be put on the market shortly. If Citadel is interested in either of these facilities as an alternate to building their own, I suggest you contact Mr. Richard Erdlitz, Manager of our Commercial Properties Department, 1500 Market Street, Philadelphia, Penna., 19101- phone (215) 557-3270, for further information.

Sybert communicated the information in this letter to Nippard, who, on November 19, 1974, called Mr. Erdlitz in Philadelphia and advised him of his prior conversations with Tracy and that Citadel Corporation was interested in the Belvoir property. Erdlitz advised Nippard that a brochure on that property was being prepared and as soon as the brochure was ready it would be sent to Nippard. Shortly thereafter Nippard received from Erdlitz a brochure entitled "Pipeline Terminal for Sale,” which Nippard forwarded to Koehneke of Citadel by letter dated January 24, 1975. Citadel’s counsel, Alan D. Keiler, then called Erdlitz and after negotiations between Erdlitz and Keiler the parties executed a contract of sale for the Belvoir property for 3.125 million dollars.

Sybert became aware that the parties were proceeding to settlement and called Erdlitz to remind him of his claim for commissions. Erdlitz promptly denied any commissions were due. The suit for commissions then was filed and the trial judge made the following findings of fact and law:

(a) Mr. Tracy, "Real Estate Manager Special Projects” was clothed with at least apparent authority to enter into the Agreement testified to by Messrs. Sybert and Nippard.
(b) A valid and enforceable contract was agreed to by the parties in this action.
(c) In accordance with the testimony of Mr. lager the rate of compensation agreed upon by the parties was ten percent (10%) of the purchase price.
(d) The sale of the Belvoir property by Arco to Belvoir Terminals Corporation satisfied the condition of the Contract and entitled the Appellees to the compensation agreed upon.

Appellant raises six issues to be determined by this appeal:

I. Did the trial court err in finding the existence of a brokerage agreement between appellees, attorneys, and appellant, their client?
A. Did appellees meet their burden of proving their cause of action by clear and convincing evidence, or even by a preponderance of the evidence?
B. Did the trial court err in finding that George Tracy, an employee of appellant, had apparent authority to bind appellant to the alleged brokerage agreement?
II. Was the alleged brokerage agreement null and void because appellees failed to fully disclose to appellant, or even to George Tracy, the potential pitfalls of their dual representation of appellant and Citadel Corporation and also failed to obtain any informed consent?
III. Did appellees meet their burden of proving that they were the procuring cause of the sale of appellant’s Belvoir Terminal?
IV. Was the applicable choice of law in this case either the law of Virginia or the law of the District of Columbia, rather than the law of Maryland?
V. Could appellees recover a brokerage commission under Maryland law when appellees were not licensed real estate brokers?
VI. Did appellees meet their burden of proving that there was a customary and usual brokerage commission and that any such commission was certain, uniform and notorious?

I. A., I. B., II and V.

Appellant initially contends that the appellees failed to overcome their burden of proving their case by clear, satisfactory and convincing evidence. This standard, if applicable, is more onerous than the usual standard of proof imposed upon a plaintiff, i.e., the burden of proof by a preponderance of the evidence. In support of this contention appellant cites the following cases: Iula v. Grampa, 257 Md. 370, 263 A.2d 548 (1970); Cook v. Hollyday, 185 Md. 656, 45 A.2d 761 (1946); In re Williams, 180 Md. 689, 23 A.2d 7 (1941); Baker v. Otto, 180 Md. 53, 22 A.2d 924 (1941); Crest Investment Trust, Inc. v. Comstock, 23 Md. App. 280, 327 A.2d 891 (1974). After reviewing these cases, however, we find that they are factually inapposite with the case at bar. In each of these cases the attorney-client relationship was attacked on the basis that there had been fraudulent conduct or undue influence on the part of the attorney. Under these circumstances the Court of Appeals and this Court has held that the transactions were at least prima facie invalid and that the burden was on the attorney to establish by the clearest and most satisfactory evidence that the transaction was fully understood and fair in all respects. In the case at bar, there is not the slightest suggestion of fraud or undue influence by the appellees. We conclude the burden of proof on the plaintiffs in this case is that usually imposed on a plaintiff — to prove his case by a preponderance of the evidence.

Appellees were required to prove by a preponderance of the evidence that a brokerage agreement was entered into between appellees and appellants on the basis: (1) of the alleged agreement between Tracy and the appellees; (2) that Tracy had actual or apparent authority to enter into such an agreement on behalf of the appellant; (3) that appellees were the procuring cause of the sale; (4) that there was a customary and usual brokerage commission in Maryland in 1974 and 1975 for the sale of improved industrial property; and (5) that said customary and usual commissions were certain, uniform and notorious.

As to the first and third of these issues it is clear from the record that Sybert and Nippard both testified expressly that Tracy agreed that the appellant would pay the customary and usual brokerage commissions if Nippard’s client was successful in buying the excess property appellant had for sale. Furthermore, there was evidence that prior to the meeting on October 16, 1974 (between Sybert, Nippard and Tracy) neither Tracy, Erdlitz (Tracy’s superior) nor any other Arco official had heard of the Citadel Corporation. Tracy’s letter to Sybert with a copy to Erdlitz (which we have previously quoted), clearly indicated that Sybert and Nippard were representing Citadel and that Citadel was interested in the Key Highway and Fort Belvoir properties. When Nippard called Erdlitz, he advised Erdlitz of his prior conversation with Tracy and the current interest of Citadel in the Belvoir property. Erdlitz promised Nippard that as soon as it was ready he would send a brochure to Nippard giving all the details of the Belvoir offer. As a follow-up to Nippard’s phone call, Erdlitz sent a handwritten memorandum to his assistant, Grady B. Law, identifying "Sybert, Sybert, etc.” as a prospect for the Belvoir pipe terminal property. Nippard did in fact receive the brochure and forwarded it to Koehneke of the Citadel Corporation. It was in reaction to Nippard’s action that Alan D. Keiler, counsel for Citadel, communicated with Erdlitz and began negotiations for the purchase of the Belvoir property. This resulted in a contract of sale with Belvoir Terminals, a newly created alter ego of Citadel, for the full asking price of $3,125,000.

Moreover, it is conceded by the appellant that prior to the October 16, 1974 conference in Sybert’s office, Arco had no knowledge of Citadel and Citadel’s interest in the Belvoir property resulted from the meeting. Arco’s basis for the final refusal to pay commissions to Sybert and Nippard was expressed in Arco’s letter to Sybert wherein it was stated, "you are not a real estate broker and were never employed by this company to act as a real estate broker in any transaction.”

From this language it is clear to us that Arco was relying on the provisions of Maryland Code (1957, 1979 Repl. Vol., 1981 Cum. Supp.) Article 56, § 212 (which defines the business of a real estate broker) and § 217 (which proscribes carrying on such business unless licensed to do so). The appellees make no contention that they were licensed real estate brokers. Appellant, however, has entirely overlooked the effect of Article 56, § 212 (f) (6), which states:

(f) Exceptions.

The terms "real estate broker” and "real estate salesman” do not include:
(6) Attorneys at law who are not regularly engaged in the real estate business and who do not hold themselves out by sign, advertisement or otherwise as offering to the general public the services authorized by this subtitle to be performed by real estate brokers.

It is clear from the record that there was sufficient evidence from which the trial court could find either an express or implied contract between the parties regarding the appellee’s right to be paid commissions for their services in securing a purchaser for the Belvoir property. Therefore, the fact that none of the attorneys were licensed real estate brokers would not operate so as to deny them the right to their compensation since they clearly fell within the exception expressed in Section 212 (f) (6) of Article 56.

The trial court in its findings of fact concluded that Tracy was clothed with at least apparent authority to enter into the agreement as contended by Sybert and Nippard. We define "apparent authority” in Miller v. Mueller, 28 Md. App. 141, 343 A.2d 922 (1975), as follows:

Apparent authority may arise when the actions of the principal, reasonably interpreted, cause a third person to believe in good faith that the principal consents to the acts of the agent. Apparent authority also may arise when the principal knowingly permits the agent to act in a certain manner as if he were authorized. The action or manifestation of authority giving rise to the reliance must be that of the principal, and the reliance by the third person on the action or manifestation of authority must be reasonable. [Citations omitted]. [28 Md. App. at 148],

See also Fuller v. Horvath, 42 Md. App. 671, 402 A.2d 134 (1979), wherein we held that the powers of corporate agents and the scope of their authority depend on the same principles as in the case of agents for individuals.

In order to establish that Tracy was clothed with at least apparent authority to enter the subject agreement, the appellees were required to prove that the actions of appellant, when reasonably interpreted by the appellees gave rise to apparent authority and that appellees’ reliance on such actions was reasonable. The trial court had before it evidence that Tracy’s official job title with Arco was "Real Estate Manager, Special Projects”; that in February, 1974 he was assigned to act as coordinator for the "Schultz property”; that from February, 1974 until his retirement in December, 1974, Tracy was the appellant’s primary contact with the appellee concerning the "Schultz property”; that he was the representative of Arco when the conference was arranged between Sybert, Nippard, Citadel and himself acting on behalf of Arco; that he attended the pre-conference between Sybert, Nippard and himself at which he admits the question of "compensation” for Sybert and Nippard was discussed in the event a deal with Citadel was arranged, but contends no brokerage commissions were mentioned; and that he advised Erdlitz by letter that as a result of the conference between the appellees, Citadel, and himself there was some interest on the part of Citadel in the purchase of the Belvoir property. Upon a full consideration of the testimony in the record extracts and the exhibits offered in support of the testimony, we do not find that the trial judge, having the benefit of the appearance of the witnesses before him, erred in concluding that Tracy was clothed with at least apparent authority to enter into the agreement testified to by Messrs. Sybert and Nippard.

Appellant contends that the alleged brokerage agreement was null and void because the appellees failed to fully disclose to Tracy or to the appellant the potential pitfalls of their dual representation of appellant and Citadel Corporation and that appellees failed to obtain any informed consent to such dual representation. Appellant relies principally upon Crest Investment Trust v. Comstock, supra, and Canon 5 of the Code of Professional Responsibility and Disciplinary Rule 5-105, found in Maryland Code (1957, 1977 Repl. Vol.) "Maryland Rules” Vol. 9B, Appendix F.

In Crest, we said:
This is rather a situation where an attorney has chosen to act for both sides (with the knowledge of both sides) in a business transaction — an undertaking which is indeed fraught with serious problems and potentially dire consequences and should generally be avoided.
In the first place, counsel incurs substantial risk of violation of Canon 5 of the Code of Professional Responsibility and the Disciplinary Rule based on this Canon, DR 5-105. The Canon declares that "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client,” and DR 5-105 states that in situations where the exercise of a lawyer’s independent professional judgment on behalf of a client is likely to be adversely affected by his representation of another client, the lawyer may represent both clients only "if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. [Footnotes omitted]. [23 Md. App. at 300-01].

The Court further stated:

Furthermore, if dual representation does occur, fidelity to the Code of Professional Responsibility and prudent concern for legitimate self-interest against possible liability dictate that full disclosure be made of the possible dangers involved and that the legal representation be fundamentally fair to both sides. The requirements of full disclosure were spelled out in In re Kamp, [40 N.J. 588,] 194 A.2d p. 240 [(1963)], in terms not inappropriate to the instant case:
"Full disclosure requires the attorney not only to inform the prospective client of the attorney’s relationship to the seller, but also to explain in detail the pitfalls that may arise in the course of the transaction which would make it desirable that the buyer have independent counsel. The full significance of the representation of confíicting interests should be disclosed to the client so that he may make an intelligent decision before giving his consent. If the attorney cannot properly represent the buyer in all aspects of the transaction because of his relationship to the seller, full disclosure requires that he inform the buyer of the limited scope of his intended representation of the buyer’s interests and point out the advantages of the buyer’s retaining independent counsel.” [Emphasis in original]. [23 Md. App. at'303].

See also Sinclair v. State, 278 Md. 243, 363 A.2d 468 (1976). Our careful consideration of Crest, however, convinces us that it is factually inapposite to the facts in this case.

In Crest, we found disclosure by an attorney involved in dual representation to have inadequately advised one of his clients upon the following factual situation, as quoted from the trial court’s opinion:

It is patently clear that the defendant Kaplan, acting as attorney for the plaintiffs in this transaction, failed to make an adequate disclosure to them of all relevant factors involved in their entering into the agreement of November 30, 1967, with defendant Crest for which he was also acting as attorney, and said agreement was obviously preferential to his clients, defendants Crest and Comstock, Inc., and manifestly unfair to his clients, the plaintiffs. Defendant Kaplan failed to disclose to plaintiffs that Crest, having guaranteed the mortgage on their farm, might have to pay that mortgage, and that their home and the ninety-seven (97) acres of their farm optioned to Crest’s subsidiary might not be obligated for the debts of Comstock, Inc. There was no disclosure measuring the value of the acres against the value of what Crest had invested or explaining how the Comstocks would receive a decreased rather than an increased interest in potential profits for having contributed their farm to the Crest subsidiary. Furthermore, the later conveyance to Crest is nowhere explained by the evidence, although made at a time when defendant Kaplan was acting as attorney for the Comstocks. Any lawyer should have known that this was not a fair transaction and the failure to protect the plaintiffs and so advise them while acting as their attorney is a complete breach of the fiduciary relationship. The court views defendant Kaplan’s actions as an obvious attempt to protect his client Crest from further losses occasioned by the poor investment he had recommended to its Board of Directors by taking advantage of the plaintiffs. [Id., at 299-300]. [Emphasis omitted].

There is no such situation in the case at bar. Counsel made full and complete disclosure of their situation from the very beginning and there is not the slightest suggestion of a lack of good faith on behalf of appellees. We find no failure by appellees in complying with either the letter or the spirit of Canon 5. >

III.

Both appellant and appellees rely principally on Hampton Park Corporation v. T. D. Burgess Co., Inc., 270 Md. 269, 311 A.2d 35 (1973), as authority to sustain their respective positions on the issue whether the trial judge was clearly erroneous in his conclusion that the appellees had met their burden of proof in establishing that the appellees were the procuring cause of the sale of the Belvoir property.

The substantive law is found in Hampton, supra, at pp. 280, 281, where the Court of Appeals said:

Long ago, in Keener v. Harrod, 2 Md. 63 (1852), our predecessors declared:
"... We understand the rule to be this, (in the absence of proof of usage), that the mere fact of the agent having introduced the purchaser to the seller, or disclosed names by which they came together, to treat, will not entitle him to compensation; but, if it appears that such introduction or disclosure was the foundation on which the negotiation was begun and conducted, and the sale made, the parties cannot afterwards, by agreement between themselves, withdraw the matter from the agent’s hands, so as to deprive him of his commission, (citations omitted) ....” 2 Md. at 71 (emphasis added).

That rule was reaffirmed in Jones v. Adler, 34 Md. 440,443 (1871), and has since been consistently followed in a line of cases too numerous to list here. We also held in Cowal v. Marletta, 216 Md. 222, 139 A.2d 712 (1958) that:

"The question of whether a broker’s efforts are the procuring cause of a sale is not to be determined by whether his services are slight or extensive but rather on the basis of whether the efforts he did make were in fact the proximate cause of interesting the purchaser, and his ultimate agreement to buy. . . .”216 Md. at 228 (emphasis added).

In Bearman v. Roland Park Co., 218 Md. 515, 147 A.2d 697 (1959), we went on to say:

". . . One satisfies the legal test as a procurer of the purchaser if the testimony permits the inference that the sale was accomplished as a result of his action in discovering the purchaser, acquainting him with the property and referring him to the seller for further negotiations, (citations omitted).” [Emphasis in original]. [270 Md. at 280-81].

Applying these legal principles to the facts of the instant case, we do not find that the trial judge was clearly erroneous in concluding that the appellees were the procuring cause in the sale of the Belvoir property. See Maryland Rule 1086. Buttressing our conclusion is the fact that appellants’ house counsel, Mr. Berkowitz, is alleged to have admitted this in his conversations with Mr. Sybert and never denied it in his testimony below, as evidenced by the record extract. Furthermore, the denial of the appellee’s claim by Mr. Eisenberg is based entirely on appellee’s contention that the appellees were never employed as "a real estate broker.” We attach no significance to the fact that the nominal purchaser was an alter ego of Citadel rather than Citadel itself.

IV.

Appellant next raises the issue whether the applicable choice of law in this case was either the law of Virginia or the law of the District of Columbia rather than the law of Maryland. When confronting a conflict of laws issue in an action ex contractu, the Maryland Courts have consistently applied the law of the jurisdiction where the last act culminating in the contractual relationship was performed. See Snider Bros., Inc. v. Heft, 271 Md. 409, 317 A.2d 848 (1974). See also Robert v. Construction General, Inc., 40 Md. App. 78, 388 A.2d 168 (1978), where the Court stated:

Regarding real estate brokerage contracts, the general rule is that the validity and enforceability of the contract is governed by the law of the state where the contract was made, that is, the state where the last act necessary to make it a binding agreement took place. [40 Md. App. at 90].

Appellant cites Robert as supporting its position because that Court noted and applied an exception to the general rule when it held that when the performance of a brokerage contract is clearly contemplated in another state, the law of the place of performance will govern. A close examination of the facts in Robert, however, indicates that the exception was mandated by the peculiar facts of the agreement in that case. In Robert, the provisions of the brokerage contract required the Maryland broker to staff a Virginia condominium project with personnel six days a week, to coordinate walk-throughs and move-ins, and to aid in marketing, promoting and merchandising of the project. Under these circumstances we held Virginia law was applicable.

No such facts apply in this case. The testimony of Sybert and Nippard, if believed, showed that all the elements of the brokerage agreement between the appellant and the appellees took place in Ellicott City, Maryland; that by the terms of the agreement the appellees were to acquaint the appellant with a purchaser ready, willing and able to buy; and that the introduction of the appellant and the buyer’s agent took place through the efforts of the appellees in Maryland. Under these circumstances, we find no error in the trial judge’s conclusion that the contract was made in Maryland, and to be performed in Maryland. See Maryland Rule 1086.

VI.

Appellant finally contends that the appellees failed to meet their burden of proving that there was a customary and usual brokerage commission and that such a commission was certain, uniform and notorious. The trial court had before it the testimony of Nippard and Sybert that the agreement between them and Tracy was based upon a promise to pay the usual and customary commissions. Sybert, a lawyer with over twenty-five years of real estate experience, a member of the Board of Directors of a local bank, and counsel to the local Board of Realtors, testified that the usual commissions in the sale of industrial real estate was 10%. Nippard, also experienced in real estate transactions and counsel for the largest developer in the area, testified to the same effect. The appellees produced as an expert in the field one C. Ellsworth lager, who established his long experience as a real estate dealer in Howard County and the Washington Metropolitan Area. He testified concerning his employment as an expert by the State Highway Administration, his testimony as an expert in various courts of the State of Maryland, and his employment as an expert by a number of financial institutions and law firms in the area involved in similar controversies. Specifically, Mr. lager stated that he had an agreement with Contee Sand and Gravel Co. for the payment of a 10% commission in negotiating a contract for the sale of an appropriate site for the establishment of a tank farm in the general area of the "Schultz property.” lager stated that based on his experience of over twenty-five years, the payment of a 10% commission computed on the sales price was appropriate in a transaction of the kind here involved and that if a smaller commission was to be paid it would be subject to negotiation usually initiated by the seller. The trial court found that for the relevant period here involved, the usual brokerage commission for the sale of industrial property in the Baltimore-Washington corridor, including Virginia, was 10% of the purchase price, as testified to by lager.

The appellant offered its own expert, Robert M. Arnold, who denied there was such a thing as custom or usage in the real estate profession. He sought to have the trial judge accept his statement that brokers did not discuss the rate of commissions with each other and that each transaction is governed by negotiation between the parties. He undoubtedly qualified as an expert in the real estate business but the ultimate decision in this case was a matter for the trier of the facts to determine which expert was to be believed. In Eastern Associates, Inc. v. Sarubin, 274 Md. 378, 336 A.2d 765 (1975), the Court of Appeals stated that a broker seeking to recover on the basis of custom must prove the customary commission was certain, uniform, and notorious.

The trial judge had before him sufficient evidence to permit him to conclude that there was in fact a customary commission on the sale of industrial property in the area here involved and that the sophisticated, knowledgeable owners of the property had sufficient knowledge of the facts which pertained at the time of the agreement so as to charge them with knowledge of the custom. Tracy’s specific agreement as testified to by Sybert and Nippard that Arco would pay a usual commission in the event of a sale, was evidence that as Arco’s representative he was fully aware of the customary arrangements with respect to brokerage commissions. The trial judge had the benefit of seeing the witnesses and of hearing their testimony and we cannot find on the basis of the record that he was clearly erroneous. Maryland Rule 1086.

Judgment affirmed, costs to be paid by appellant.

      . Appellant argues that if we impose the clear and convincing standard upon appellees in this case we are imposing nothing more than the criminal law standard of "proof beyond a reasonable doubt” clothed in civil garb. See Williams v. Superintendent, Clifton T. Perkins Hospital Center, 43 Md. App. 588, 406 A.2d 1302 (1979), vacated Coard v. State, 288 Md. 523, 419 A.2d 383 (1980).