Johnson v. State , 282 Md. 314 ( 1978 )

Levine, J.,

delivered the opinion of the Court. Murphy, C. J., and Smith and Orth, JJ., dissent. Orth, J., filed a dissenting opinion in which Murphy, C. J., and Smith, J., join at page 333 infra. Murphy, C. J., filed a dissenting opinion in which Smith and Orth, JJ., join at page 342 infra.

We granted certiorari in this case to determine whether voluntary incriminatory statements, given after a valid waiver of Miranda rights, are nevertheless inadmissible against an accused in a criminal prosecution, when such statements were obtained by police following an “unnecessary delay” in producing the accused before a judicial officer in violation of former Maryland District Rule 709 a.¹ After a jury trial in the Circuit Court for Carroll County, appellant was convicted on charges of armed robbery, assault with intent to murder, larceny, conspiracy and unlawful use of a handgun in connection with two holdups which took place in Annapolis, Maryland during the month of January 1975.² An appeal was taken to the Court of Special Appeals which affirmed appellant’s conviction. 36 Md. App. 162, 373 A. 2d 300 (1977). Because we have concluded that the trial court erroneously admitted certain inculpatory statements of the appellant, we shall reverse and remand for a new trial.

I

The chronology of events which led to this appeal began on January 13, 1975, when a young black male matching appellant’s description walked into the Rainbow Cleaners on West Street in Annapolis, pulled out a pistol and commanded Robin Woolford, a part-time counter clerk, to fill' a brown paper bag with money from the cash register. After having instructed Woolford to lie down on the floor, the assailant shot him in the shoulder and then fled; Woolford was seriously wounded.

Later that month, on the evening of January 24, 1975, appellant allegedly drove two men, John Leonard and Charles Wilson, to the Acme Supermarket on Solomons Island Road in Annapolis. While appellant waited outside in his automobile, Leonard and Wilson entered the market, robbed Pam Simkunas, an employee, and in the process of escaping, shot Donald Dunbar, the store manager, just grazing his shoulder. Appellant then sped away carrying his co-defendants with him.

Warrants for appellant’s arrest were secured by police on January 25,1975. Unable to locate appellant, members of the Annapolis City Police Department contacted his family for the purpose of having them persuade appellant to surrender himself voluntarily. This effort proved successful and on January 30, 1975, at 3:15 p.m., appellant turned himself in to the police. Upon his arrival at the police station, appellant was immediately taken into custody and processed (fingerprinted and photographed). No arrest warrants were served on appellant, although the record reveals that appellant was informed orally that he was under arrest “for the investigation of armed robbery” at the Acme Supermarket. Police did not at this time attempt to take appellant to a commissioner for an initial appearance.

At approximately 3:20 p.m. appellant, after receiving his first set of Miranda warnings, waived his rights by initialing a standardized police form. He was then taken to an interrogation room by Officers Selman Wallace and Thomas Brown for questioning. No sooner had the interrogation commenced than appellant began to complain of stomach pains. Officers Wallace and Brown, observing the suspect’s glassy eyes, unusually moist lips and deteriorating physical appearance, broke off the investigation and offered to take appellant to the hospital. For some reason appellant changed his mind and asked permission to rest. He was then taken to a stripped-down cell in the station house lockup where he spent the remainder of the day and night.

Interrogation resumed at 9:45 a.m. on the next day, January 31, after appellant’s condition had improved to some extent. Once again Officers Wallace and Brown conducted the investigation, prefacing the interrogation with a recitation of the Miranda warnings. Appellant executed a written waiver and agreed to submit to questioning. This session lasted some six hours, culminating in a ten-page statement in which appellant all but confessed to his complicity in the Acme robbery. It appears that the statement was not actually signed until 3:45 p.m. on the 31st. There is no substantial evidence that this statement was coerced or elicited by deception on the part of the police.

At approximately 4:00 p.m. on the 31st, shortly after making his first statement, appellant was taken before a commissioner for the first time. At this point appellant had been in police custody for over 24 hours. It is undisputed that a commissioner had been available at all times and that his office was but a short distance from the station house. When asked at trial v/hy appellant, after his arrest, had not been presented promptly before a commissioner, Officer Wallace replied:

“A. Because he hadn’t been interrogated then, sir, and we were still investigating the case.

“Q. In other words you wanted to keep him at the Annapolis Police Department, in a detention cell there, until you had such time and opportunity to interrogate him, is that correct?

“A. And not only that, Anne Arundel County Detention Center will not admit or take anybody that is sick.

* * *

“Q. And you felt that [appellant] was sick enough then and if you took him to the Commissioner ... they wouldn’t accept him?

“A. That is their policy, sir.”

Returning from his appearance before the commissioner, appellant was read the Miranda warnings for a third and final time. As he had done on the two prior occasions, appellant consented to questioning and at 6:55 p.m. confessed outright to the January 13th robbery and shooting at Rainbow Cleaners.

At a pretrial hearing on August 26,1975, appellant sought to suppress the statements made to police on January 31st, arguing that they were obtained in contravention of former District Rules 706 and 709 a. Alternatively, appellant contended that the confessions were tainted by the illegal delay in presentment before a judicial officer and therefore inadmissible on the authority of Brown v. Illinois, 422 U. S. 590, 95 S. Ct. 2254, 45 L.Ed.2d 416 (1975).³ Rejecting these theories, the trial court overruled appellant’s objections and admitted the statements.

II

Long before the adoption of the Maryland District Rules, this Court had held that police officers were under a common law duty “to convey the prisoner in a reasonable time and without unnecessary delay before a magistrate.” Kirk & Son v. Garrett, 84 Md. 383, 407, 35 A. 1089 (1896); Twilley v. Perkins, 77 Md. 252, 265, 26 A. 286, 19 L.R.A. 632 (1893). See also Blackburn v. Copinger, 300 F. Supp. 1127, 1140 (D. Md. 1969), aff’d per curiam, 421 F. 2d 602 (4th Cir.), cert. denied, 399 U. S. 910 (1970); Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125, 130-31 (1941). Invoked primarily in the context of civil actions for false imprisonment, this doctrine portended the enactment of legislation guaranteeing detainees the right to prompt presentment in Baltimore City and Montgomery County.⁴

It was not until July 1971, however, with the adoption of the predecessor to M.D.R. 723 a by this Court that the right to speedy production before a judicial officer was secured to defendants on a uniform statewide basis. As originally drafted, M.D.R. 723 a closely paralleled Rule 5(a) of the Federal Rules of Criminal Procedure, requiring the presentment of an accused before a judicial officer “without unnecessary delay.” See also Uniform Rule of Criminal Procedure 311. In response to comments from state and local law enforcement officials, however, the proposed rule was modified to incorporate a presumption of illegality, which applies whenever an arrestee is detained by police beyond 24 hours or the first session of court following arrest without having been taken to a judicial officer. See 2 G. Liebmann, Maryland District Court Law and Practice § 941, at 142 (1976). Presumably, where the delay is less than the prescribed maximum, the rule anticipates that a determination as to the necessity and reasonableness of the delay will be made by courts on a case-by-case basis. No provision is made for the imposition of sanctions against police who violate the rule.

Ill

The State, echoing the reasoning of the Court of Special Appeals, Johnson v. State, 36 Md. App. at 172, contends that the provisions of M.D.R. 723 a are directory only — being mere guidelines for the disposition of criminal defendants upon arrest. In its entirety Maryland District Rule 723 a provides:

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

That M.D.R. 723 a was intended to be mandatory is evidenced in the first instance by the express terms of the rule itself. The rule declares in unequivocal language that a “defendant shall be taken ... without unnecessary delay” to a judicial officer following arrest, (emphasis added). We have stated on numerous occasions that in the absence of a contrary contextual indication, the use of the word “shall” is presumed to have a mandatory meaning, Moss v. Director, 279 Md. 561, 564-65, 369 A. 2d 1011 (1977), and thus denotes an imperative obligation inconsistent with the exercise of discretion. Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165, 169, 338 A. 2d 248 (1975).

But we need not rely exclusively on principles of statutory construction to justify our conclusion that M.D.R. 723 a lays down a compulsory rule for police conduct. In interpreting the rules of criminal procedure, our practice has been to avoid semantic nicety and to adopt that interpretation which will best implement the policies underlying the particular rule. Johnson v. State, 274 Md. 29, 41, 333 A. 2d 37 (1975); Brown v. State, 237 Md. 492, 504, 207 A. 2d 103 (1965).

The principle of prompt presentment embodied in M.D.R. 723 a has been described as a sine qua non in any scheme of civil liberties. Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 27 (1958). In Maryland, as elsewhere, the purpose of the rule is to insure that an accused will be promptly afforded the full panoply of safeguards provided at the initial appearance.

To comprehend fully the central importance of the prompt presentment requirement, it is first necessary to examine briefly the role played by the initial appearance in our system of justice. The procedural components of the initial appearance are set forth in M.D.R. 723 b. Chief among these protections is the constitutionally compelled requirement of M.D.R. 723 b 4 that all persons arrested without a warrant be afforded a prompt hearing at which a neutral judicial officer must determine whether sufficient probable cause exists for the continued detention of the defendant. See Gerstein v. Pugh, 420 U. S. 103, 114, 95 S. Ct. 854, 43 L.Ed.2d 54 (1975); and see Note, 5 U.Balt.L.Rev. 322 (1976). Of equal importance is the provision of M.D.R. 723 b 3 obligating a commissioner at the initial appearance to make a determination of the defendant’s eligibility for pretrial release under M.D.R. 721.

A third function of the initial appearance is to inform the accused of every charge brought against him and to inform him of his right to counsel, and, if indigent, to have counsel appointed for him. M.D.R. 723 b 1; M.D.R. 723 b 2; M.D.R. 711 a. Further, where the defendant has been charged with a felony over which the District Court lacks subject matter jurisdiction, the commissioner conducting the initial appearance must notify the accused of his right under M.D.R. 727 to request a full preliminary hearing. Code (1957, 1976 Repl. Vol.) Art. 27, § 592; M.D.R. 723 b 5.' If such a request is forthcoming, the commissioner must assign a date and time for the preliminary hearing. M.D.R. 723 b 6. Finally, where the crime is one within the District Court’s jurisdiction, the presiding judicial officer must fix the date for trial. Id

The procedural requirements of M.D.R. 723 b bolster in substantial fashion several fundamental constitutional guarantees, including the right of a defendant to be informed of the accusation against him, Maryland Declaration of Rights, Art. 21; the right to be free from unauthorized and unreasonable seizures of his person, U.S. Const., amends. IV and XIV; Gerstein v. Pugh, 420 U. S. at 114; the right to be allowed counsel, Declaration of Rights, Art. 21, and to have counsel appointed for him if indigent, U.S. Const., amends. VI and XIV; Gideon v. Wainwright, 372 U. S. 335, 344-45, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963), as well as the due process right to be free from coercive investigatory methods. Brown v. Mississippi, 297 U. S. 278, 286, 56 S. Ct. 461, 80 L.Ed. 682 (1936).

Significantly, only one state in the union has construed its prompt presentment statute to be merely directory. Wilson v. State, 258 Ark. 110, 522 S.W.2d 413, 414, cert. denied, 423 U. S. 1017 (1975). We decline to follow this view. To hold, as the State urges, that compliance with the prompt presentment requirement of M.D.R. 723 a is purely discretionary with the police, would, in our opinion, be to erode severely the system of procedural guarantees designed to insure fair treatment of criminal defendants from the time of arrest to the time of trial. Prompt presentment after arrest assures impartial judicial supervision of the defendant’s rights at the earliest possible stage of detention. Accordingly, we hold that the prompt presentment requirement of M.D.R. 723 a is mandatory and was therefore binding on the police in the instant case.

IV

We now determine what effect the violation of Rule 723 a should have on the admissibility of evidence obtained during the period of unnecessary delay. Appellant urges us to fashion a per se exclusionary rule similar to that enunciated by the Supreme Court in Mallory v. United States, 354 U. S. 449, 77 S. Ct. 1356, 1 L.Ed.2d 1479 (1957), Upshaw v. United States, 335 U. S. 410, 69 S. Ct. 170, 93 L.Ed. 100 (1948), and McNabb v. United States, 318 U. S. 332, 63 S. Ct. 608, 87 L.Ed. 819 (1943). According to the so-called McNabbMallory rule, any statement obtained from an arrestee during a period of unnecessary delay in producing him before a magistrate in contravention of Federal Criminal Rule 5(a) is inadmissible at trial, irrespective of whether it was given voluntarily or not. Upshaw v. United States, 335 U. S. at 413. See generally 1 C. Wright, Federal Practice and Procedure (Criminal) §§ 72-75 (1969).

The Supreme Court has itself acknowledged that the McNabbMallory rule is not derived from the Constitution, but rather is the product of the exercise of the Court’s supervisory authority over the administration of criminal justice in the federal courts. McNabb v. United States, 318 U. S. at 341. But see Williams v. State, 264 Ind. 664, 348 N.E.2d 623, 629 (1976); C. McCormick, Handbook of the Law of Evidence § 155, at 340 (2d ed. 1972). Consequently, the rule is not binding on the states. Culombe v. Connecticut, 367 U. S. 568, 600-601, 81 S. Ct. 1860, 6 L.Ed.2d 1037 (1961); Cox v. State, 192 Md. 525, 536, 64 A. 2d 732 (1949).

Critics of McNabbMallory argue that while some incentive should be given law enforcement officials to obey the prompt production requirement,. the exclusion of confessions, statements and other evidence obtained in derogation of the rule, “is too high a price for society to pay for this type of ‘constable’s blunder.’ ” Omnibus Crime Control and Safe Streets Act of 1968, S. Rep. No. 1097, 90th Cong., 2d Sess. 38, reprinted in [1968] U.S. Code Cong. & Ad. News 2112, 2124. See also Hendrickson v. State, 93 Okla. Crim. 379, 229 P. 2d 196, 211 (1951); State v. Gardner, 119 Utah 579, 230 P. 2d 559, 563-64 (1951). They argue that the rule results in the release of criminals whose guilt is virtually beyond question and causes undue complications in the conduct of criminal trials. S. Rep. No. 1097, 90th Cong., 2d Sess. 40, reprinted in [1968] U.S. Code Cong. & Ad. News 2112, 2125-26. See United States v. Ceccolini, U. S., 98 S. Ct. 1054, 1061, 55 L.Ed.2d 268 (1978).

Not surprisingly, then, the vast majority of state courts passing on the question have rejected McNabb-Mallory outright, opting instead for a traditional due process voluntariness test of the admissibility of confessions.⁵ According to this view, a statement extracted from an arrestee in violation of his right to prompt presentment is not ipso facto inadmissible. Rogers v. Superior Court of Alameda County, 46 Cal. 2d 3, 291 P. 2d 929, 933 (1955). Rather the delay is considered a relevant factor in evaluating the overall voluntariness of the confession. People v. Carbonaro, 21 N.Y.2d 271, 287 N.Y.S.2d 385, 234 N.E.2d 433, 436 (1968). A statement is deemed voluntary if, when examined in light of the totality of circumstances surrounding its utterance, it has not been “extracted by any sort of threats or violence, nor obtained by any direct or implied promises, ... nor by the exertion of any improper influence.” Malloy v. Hogan, 378 U. S. 1, 7, 84 S. Ct. 1489, 12 L.Ed.2d 653 (1964); and see State v. Kidd, 281 Md. 32, 35-36, 375 A. 2d 1105, cert. denied, 98 S. Ct. 646 (1977).

The State exhorts us to join the majority and apply a voluntariness standard to statements obtained in violation of M.D.R. 723 a. We decline to do so. To say that an unlawful postponement of the initial appearance may be merely a factor in assessing the admissibility of a statement, is to imply that an unnecessary delay may be overlooked entirely if other indicia of voluntariness exist. Under this analysis, even a gross violation of the presentment requirement can be disregarded altogether. See, e.g., Reeves v. Commonwealth, 462 S.W.2d 926 (Ky.), cert. denied, 404 U. S. 836 (1971) (4-day delay in presentment did not affect admissibility); State v. Williams, 369 S.W.2d 408 (Mo. 1963) (10-day delay). Despite its relatively popular acceptance, therefore, the voluntariness standard is a hopelessly inadequate means of safeguarding a defendant’s right of prompt presentment.

Voicing their disenchantment with the voluntariness standard, several states have elected in recent years to adopt a per se exclusionary rule in order to combat what many perceive to be an increase in the number of flagrant violations of the prompt production requirement. Webster v. State, 59 Del. 54, 213 A. 2d 298, 301 (1965); Vorhauer v. State, 59 Del. 35, 212 A. 2d 886, 892 (1965); Larkin v. United States, 144 A. 2d 100, 103 (D.C. App. 1958); Oliver v. State, 250 So. 2d 888, 889 (Fla. 1971); (but see State v. Roberts, 274 So. 2d 262, 264 (Fla. App.), rev’d on other grounds, 285 So. 2d 385 (Fla. 1973)); State v. Benbo, Mont., 570 P. 2d 894, 900 (1977); Commonwealth v. Davenport, 370 A. 2d 301, 306-307 (Pa. 1977). See State v. Vollhardt, 157 Conn. 25, 244 A. 2d 601, 607 (1968) (construing statutory codification oí Mallory rule); and see People v. Williams, 68 Cal. App.3d 36, 137 Cal. Rptr. 70, 75 (1977) (adopting per se rule with respect to line-up identification evidence, but retaining voluntariness standard for confessions).

These courts recognize, despite sharp criticism from some quarters, see, e.g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 416, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting), that the exclusionary rule is perhaps the most effective and practical means of curbing lawless police conduct when it impinges upon fundamental legal and constitutional rights of a criminal defendant. Vorhauer v. State, 212 A. 2d at 893; People v. Carbonaro, 234 N.E.2d at 438 (Fuld, C. J., dissenting); see Brown v. Illinois, 422 U. S. at 599-600. The theory behind the rule is that by refusing to admit evidence obtained as a result of illegal conduct, courts will “instill in ... particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.” Michigan v. Tucker, 417 U. S. 433, 447, 94 S. Ct. 2357, 41 L.Ed.2d 182 (1974). There is reason to believe that the exclusionary rule is an especially effective deterrent when invoked with respect to in-custody interrogations, since police activity at this stage in the investigation is likely to be aimed at procuring evidence for use at trial. Model Code of Pre-Arraignment Procedure § 150.3, Commentary, at 397 (1975). See Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 722 (1970).

While deterrence of future police misconduct is the primary function of the exclusionary rule, United States v. Janis, 428 U. S. 433, 446, 96 S. Ct. 3021, 49 L.Ed.2d 1046 (1976); Note, 62 Cornell L. Rev. 364, 372 (1977), the suppression of illegally obtained evidence is also said to prevent the debasement of the judicial process by insuring that courts do not become “accomplices in willful disobedience of law.” McNabb v. United States, 318 U. S. at 345; Olmstead v. United States, 277 U. S. 438, 483, 485, 48 S. Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). See Comment, Judicial Integrity and Judicial Review: An Argument for Expanding the Scope of the Exclusionary Rule, 20 U.C.L.A. L. Rev. 1129, 1163-64 (1973). But cf. Stone v. Powell, 428 U. S. 465, 485, 96 S. Ct. 3037, 49 L.Ed.2d 1067 (1976) (“While courts ... must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence”).

Arguing that an exclusionary rule would sweep too broadly, the State urges our adoption of two more tempered variations of the per se rule. Under the State’s first variant, a confession or statement would be suppressed only if the defendant could demonstrate that he was unfairly prejudiced by reason of police failure to obey the prompt presentment rule. People v. Hosier, 186 Colo. 116, 525 P. 2d 1161, 1164 (1974); State v. Johnson, 222 Kan. 465, 565 P. 2d 993, 1000-1001 (1977). Prejudice is said to exist when the purpose of the delay was solely to extract, “squeeze out” or “sew up” a confession or culpable statement to assure a finding of guilt. People v. White, 392 Mich. 404, 221 N.W.2d 357, 366 (1974), cert. denied, 420 U. S. 912 (1975); Briggs v. State, 76 Wis. 2d 313, 251 N.W.2d 12, 17 (1977); Raigosa v. State, 562 P. 2d 1009, 1015 (Wyo. 1977).

This approach, in our view, is merely a reformulation of the voluntariness test. Furthermore, the prejudice test would encumber the defendant with the well-nigh insurmountable burden of showing that detention was deliberately prolonged in order to extract a confession. In our view a defendant suffers prejudice whenever a statement procured during an illegal delay is used against him at trial or leads directly to other evidence ultimately employed to convict him. Commonwealth v. Futch, 447 Pa. 389, 290 A. 2d 417, 419 (1972). Accord, State v. Benbo, 570 P. 2d at 900.

The State’s second alternative would be to apply the exclusionary rule only where the police have committed a substantial violation of the prompt presentment rule. This approach is similar to a proposal recently propounded by the American Law Institute in its Model Code of Pre-Arraignment Procedure § 150.3 (1975). Under the Model Code, statements may be suppressed only if the violation of the prompt presentment provision 1) was gross, wilful and prejudicial to the accused; or 2) was of a kind likely to mislead the accused as to his legal rights or to have influenced the defendant’s decision to make the statement; or 3) created a significant risk of untrustworthiness. While the ALI scheme does offer more in the way of protection than the traditional voluntariness standard, we believe that, as currently formulated, the “substantiality test” might conceivably encourage evasion of the requirements of M.D.R. 723 a, rather than deter such conduct. Moreover, adoption of an ALI-type test would significantly and unnecessarily complicate and confuse admissibility determinations by requiring trial courts to apply criteria which are themselves not susceptible of precise definition.

In our opinion the protection of the right of an accused to prompt production before a judicial officer following arrest will be most effectively accomplished by a per se exclusionary rule. Not only is such a rule calculated to deter unlawful detentions and to preserve the integrity of the criminal justice system, but it is likely to assure more certain and even-handed application of the prompt presentment requirement and will provide to trial courts, the bar and law enforcement officials greater guidance as to the permissible limits of custodial interrogation prior to an initial appearance. Commonwealth v. Davenport, 370 A. 2d at 306.

Conceivably, application of this rule may in rare instances culminate in the release of potentially guilty defendants; nevertheless, on balance the rights secured directly or indirectly by M.D.R. 723 a are too vital to be ignored or compromised in the name of social éxpedieney. Hogan & Snee, supra, 47 Geo. L. J. at 23.

“The prohibition ... against any unnecessary delay between an arrest by an accusatorial authority and a preliminary arraignment minimizes the possibility of any unnecessary abridgement of a citizen’s liberty. Such an abridgement would, of course, be unconstitutional. The danger of any such unnecessary and unconstitutional restriction of liberty diminishes significantly when a citizen is brought swiftly before a neutral judicial authority____” Commonwealth v. Dixon, 454 Pa. 444, 311 A. 2d 613, 614 (1973).

We therefore hold that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief. A statement is automatically excludible if, at the time it was obtained from the defendant, he had not been produced before a commissioner for his initial appearance within the earlier of 24 hours after arrest or the first session of court following arrest, irrespective of the reason for the delay. Where, however, the delay in presentment falls within the outer limits established by M.D.R. 723 a, it is incumbent upon the trial court to determine whether the State has met its burden of showing that the delay was necessary under the circumstances of the particular case. Examples of necessary delay might include those required: 1) to carry out reasonable routine administrative procedures such as recording, fingerprinting and photographing; 2) to determine whether a charging document should be issued accusing the arrestee of a crime; 3) to verify the commission of the crimes specified in the charging document; 4) to obtain information likely to be a significant aid in averting harm to persons or loss to property of substantial value; 5) to obtain relevant nontestimonial information likely to be significant in discovering the identity or location of other persons who may have been associated with the arrestee in the commission of the offense for which he was apprehended, or in preventing the loss, alteration or destruction of evidence relating to such crime. Mallory v. United States, 354 U. S. at 454-55; Uniform Rule of Criminal Procedure 311; Model Code of Pre-Arraignment Procedure § 130.2(2)(b) (1975).

We note also that a truly spontaneous “threshhold” confession or statement uttered at the time of arrest or shortly thereafter would not be excludible on the grounds that police subsequently failed to act diligently in complying with M.D.R. 723 a. In such cases there is manifestly no connection between the delay and the statement, and since police misconduct does not in any way contribute to the making of the confession, the exclusionary rule would logically not apply. United States v. Mitchell, 322 U. S. 65, 70, 64 S. Ct. 896, 88 L.Ed. 1140 (1944); United States v. Seohnlein, 423 F. 2d 1051, 1053 (4th Cir.), cert. denied, 399 U. S. 913 (1970); 1 C. Wright, Federal Practice and Procedure (Criminal) § 73, at 79-80 (1969).

In the case at hand, police held appellant for just over 24 hours after his arrest, and this despite the availability of a commissioner at all times on January 30 and 31,1975. What is more, the evidence established that police deliberately postponed presentment of appellant for the purpose of subjecting him to further interrogation. Under our holding announced here, appellant’s first inculpatory statement (concerning the Acme Supermarket robbery), signed shortly prior to his initial appearance before a commissioner on the afternoon of the 31st, was inadmissible per se, since it was given during the period of delay in presentment which extended beyond 24 hours and long after the first session of court following the arrest.

Appellant’s second statement, admitting responsibility for the Rainbow Cleaners holdup and shooting, which was given almost immediately upon appellant’s return from the commissioner on January 31, should likewise have been suppressed. We cannot say, on the record before us, that the second confession was an independent act, occurring after time for deliberate reflection and therefore free from the taint of the preceding illegal detention. In sum, then, unless appellant waived his right to prompt presentment before a judicial officer, both statements implicating him in the crimes of January 13 and 24, should have been excluded from evidence, having been obtained in clear violation of M.D.R. 723 a.

V

The State’s final contention is that by thrice waiving his constitutional rights under Miranda v. Arizona, 384 U. S. 436, 478-79, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), appellant also waived any right he may have had under M.D.R. 723 a to be brought promptly before a judicial officer. The argument posited by the State has won acceptance in at least two federal appellate circuits and the District of Columbia. Pettyjohn v. United States, 419 F. 2d 651, 656 (D.C. Cir. 1969), cert. denied, 397 U. S. 1058 (1970); United States v. Indian Boy X, 565 F. 2d 585, 591 (9th Cir. 1977); Matter of F.D.P., 352 A. 2d 378, 382 (D.C. App. 1976). See also People v. Hosier, 525 P. 2d at 1164; State v. Roberts, 274 So. 2d 262, 265 (Fla. App.), rev'd on other grounds, 285 So. 2d 385 (Fla. 1973); Richmond v. State, 554 P. 2d 1217, 1229 (Wyo. 1976).

Proponents of this view assert that the purpose behind the McNabb-Mallory rule, at least in part, is to protect indigent and illiterate defendants against the coercive conditions of custodial interrogation. Thus, it is said, the rule indirectly vindicates an accused’s Fifth Amendment privilege against self'incrimination, which is precisely what the Supreme Court sought to protect by means of the prophylactic rule announced in Miranda. See 8 J. Moore, Federal Practice ¶ 5.02[2], at pp. 5-15 to 5-16 (2d ed. 1977). Therefore, since the Miranda warnings provide an accused with the same protection he would receive under McNabb-Mallory, it follows that a waiver of one’s Miranda rights should also operate as a waiver of the right to an immediate judicial warning of constitutional rights under Mallory. Frazier v. United States, 419 F. 2d 1161, 1167 (D.C. Cir. 1969).

This argument in our opinion is based on a false premise, that Miranda and the prompt presentment requirement share a common purpose. The fact of the matter is that Miranda was never intended to supplant the Mallory rule, as the Supreme Court itself acknowledged in the Miranda opinion. Miranda v. Arizona, 384 U. S. at 463 n. 32. One jurist has commented that it is unsound to treat Miranda and Mallory as closely related, since the former is a qualitative test of the circumstances of the interrogation, while the latter focuses on the duration of time delay. Frazier v. United States, 419 F. 2d at 1171 (Burger, J., dissenting).

To be sure, one important function of the initial appearance is to advise an arrestee of his right to counsel; to this extent there is a partial overlap with Miranda. Even so, it has been convincingly argued that the typically perfunctory reading of Miranda warnings by police at the time of arrest may be insufficient to provide the accused with adequate notice of his constitutional rights; and that a need exists for follow-up advice of the basic right to counsel by a neutral officer of the court, such as is provided by M.D.R. 723 b 2. Commonwealth v. Tingle, 451 Pa. 241, 301 A. 2d 701, 703 (1973). Note, 79 Dick. L. Rev. 309, 348 (1975).

But, as we have previously observed, the initial appearance affords a defendant considerably more than a supplementary warning of his right to counsel. Additional protections include the right to be notified of all charges brought by the State, and the right to a hearing on the defendant’s eligibility for pretrial release and court-appointed counsel. What is more, defendants arrested without a warrant are entitled to a constitutionally mandated probable cause determination. Such matters lie outside the scope of Miranda and are the exclusive responsibility of the judicial officer presiding at the initial appearance.

In light of the dissimilar functions performed by the two rules, we can only conclude that a waiver of Miranda rights by an accused does not automatically waive his right to a prompt initial appearance under M.D.R. 723 a. Accord, United States v. Erving, 388 F. Supp. 1011, 1020-21 (W.D. Wis. 1975); State v. Benbo, 570 P. 2d at 899. Of course, a defendant may specifically waive his right to prompt presentment, provided such waiver is knowingly and intelligently made. See State v. McKay, 280 Md. 558, 572-74, 375 A. 2d 228 (1977). Since the record in the present case reveals no indication that appellant ever effectively consented to a deferment of his initial appearance, we hold that his rights under M.D.R. 723 a were not validly waived.

Judgment of the Court of Special Appeals reversed; remanded to that court with instructions to reverse the judgment of the Circuit Court for Carroll County and to remand for a new trial.

Costs to be paid by Anne Arundel County.

1 . Effective July 1, 1977, Chapter 700 of the Maryland District Rules underwent extensive revision. Only slight changes, however, were made in the language of former M.D.R. 709 a which has now been redesignated M.D.R. 723 a. For the sake of clarity, all references to the Maryland District Rules in this opinion are to the version currently in effect, unless otherwise indicated.

2 . An Anne Arundel County grand jury handed down three separate indictments against appellant who then obtained removal of the cases to Carroll County. All three cases were subsequently consolidated at the State’s request and tried together.

3 . Former M.D.R. 706 d required an arresting officer to give an accused a copy of the arrest warrant “promptly after his arrest.” (See present M.D.R. 720 g requiring service of warrant and charging document on defendant “as soon as possible” after arrest.) Since, for reasons to be stated elsewhere, we have concluded that appellant’s statements were inadmissible by reason of M.D.R. 723 a, we have no occasion to decide whether such statements were also excludible under former M.D.R. 706 d or Brown v. Illinois, 422 U. S. 590, 95 S. Ct. 2254, 45 L.Ed.2d 416 (1975).

4 . See, e.g., Maryland Code (1957, 1968 Repl. Vol., 1971 Cum. Supp.) Art. 52, § 97 (h) (Montgomery County) (repealed 1972), discussed in Jackson v. State, 8 Md. App. 260, 267-69, 259 A. 2d 587 (1969); Code (1957, 1966 Repl. Vol.) Art. 26, § 115 (Baltimore City) (repealed 1972), discussed in Taylor v. State, 238 Md. 424, 431-32, 209 A. 2d 595 (1965); Code of Pub. Loc. L. (1938) Art. 4, §§ 742 and 916 (Baltimore City) (repealed 1961), discussed in Grear v. State, 194 Md. 335, 348-49, 71 A. 2d 24 (1950) and Cox v. State, 192 Md. 525, 534-36, 64 A. 2d 732 (1949).

5 . See, e.g., People v. Haydel, 12 Cal. 3d 190, 115 Cal. Rptr. 394, 524 P. 2d 866, 870 (1974); State v. Wyman, 97 Idaho 486, 547 P. 2d 531, 536 (1976); State v. Hansen, 225 N.W.2d 343, 350 (Iowa 1975); State v. Jones, 53 N. J. 568, 252 A. 2d 37, 39-41, cert. denied, 395 U. S. 970 (1969); People v. Carbonaro, 21 N.Y.2d 271, 287 N.Y.S.2d 385, 234 N.E.2d 433, 436 (1968); State v. Shipley, 232 Or. 354, 375 P. 2d 237, 240 (1962), cert. denied, 374 U. S. 811 (1963); State v. Hoffman, 64 Wash. 2d 445, 392 P. 2d 237, 240 (1964); and see cases collected in Annot., 19 A.L.R.2d 1331 (1951).

Even the federal courts, spurred on by the enactment of Title II of the Omnibus Crime Control and Safe Streets Act of 1968,18 U.S.C. § 3501 (1970), which purported to overrule McNabb-Mallory with respect to delays lasting less than six hours, have all but jettisoned the per se exclusionary rule in favor of a voluntariness standard in all cases including those where the delay in presentment exceeds six hours. See, e.g., United States v. Gaines, 555 F. 2d 618, 623 (7th Cir. 1977).