Special Investigation No. 227, In re

• Decision Date: 07 October 1983
• Docket Number: 611,Nos. 372,s. 372
• Citation: 55 Md.App. 650,466 A.2d 48
• Parties: In re a SPECIAL INVESTIGATION NO. 227. In re The TERM OF THE JANUARY, 1983, GRAND JURY, NO. 280.
• Court: Court of Special Appeals of Maryland

Page 650

55 Md.App. 650

466 A.2d 48

In re a SPECIAL INVESTIGATION NO. 227 In re The TERM OF THE JANUARY, 1983, GRAND JURY, NO. 280.

Nos. 372, 611.

Court of Special Appeals of Maryland.

Oct. 7, 1983.

Certiorari Denied Oct. 31, 1983.

Gary E. Bair, Asst. Atty. Gen., with whom was Stephen H. Sachs, Atty. Gen., on the brief, for appellant in No. 372 and appellee in No. 611.

Albert H. Turkus, Washington, D.C., with whom were Dow, Lohnes & Albertson, Washington, D.C., on the brief, for appellant in No. 611 and appellee in No. 372.

Argued before MOYLAN, ADKINS and BLOOM, JJ.

MOYLAN, Judge.

Like Jarndyce v. Jarndyce, this investigation of Medicaid fraud at a nursing home and hospital in Prince George's County goes on forever. On September 20, 1983, we heard argument in this consolidated appeal. Because the deliberate delaying tactics which have thwarted, sidetracked, and frustrated this investigation for over two years have already been scandalously effective, we rendered our decision, with mandate to issue forthwith, within an hour of the argument's conclusion. We affirmed the decision of Judge John R. Hargrove in the case of In Re: The Term of the January, 1983 Grand Jury, No. 611 on our docket; we reversed the decision of Judge Milton B. Allen in the case of In Re: Special Investigation No. 227, No. 372 on our docket. This opinion follows by way of brief explanation for those decisions already rendered.

With respect to Special Investigation No. 227, a subpoena duces tecum was issued initially by the Baltimore City Grand Jury to the Custodian of Records of the suspect hospital. On April 2, 1982, Judge Allen signed an order granting the hospital's motion to quash the subpoena. Upon the first appeal to this Court, we vacated that order and remanded the case for further proceedings because of our conclusion that the State had been denied a full and fair hearing; it had not been given the opportunity to file any pleading in opposition to the motion to quash and because it was denied a hearing on the merits of that motion. Upon remand, a hearing was held with respect to the motion to quash this subpoena (and a replacement subpoena similar in every respect except that it was issued by a successor grand jury) in February, 1983. The second motion to quash was signed on May 5, 1983.

The motion was predicated upon the argument that the detailed description of documentary evidence reflected by the subpoena, as well as the very interest in that evidence, was the tainted fruit of the poisoned tree. The ostensibly poisoned tree was an earlier search of the hospital and nursing home which occurred on February 4, 1982. That search was in execution of a valid search warrant. The claim of the hospital, however, is that that search, valid at its inception, was excessive in scope and that the later subpoena was the tainted product of the excess.

Without addressing remotely the Fourth Amendment merits, we find the Supreme Court's decision in the case of United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), to be absolutely dispositive. In that case, the claim was made that the use of the contempt sanction by the court to compel grand jury testimony in answer to questions prompted by knowledge which was the fruit of an earlier Fourth Amendment violation would itself represent a new Fourth Amendment violation. The Supreme Court flatly rejected that logic as it concluded, "Questions based on illegally obtained evidence are only a derivative use of the product of a past unlawful search and seizure. They work no new Fourth Amendment wrong." 414 U.S. at 354, 94 S.Ct. at 623.

The Supreme Court concluded that the Fourth Amendment merits and the exclusionary rule had no place at the grand jury stage of investigation "It is evident that this extension of the exclusionary rule would seriously impede the grand jury. Because the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial. Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective. The probable result would be 'protracted interruption of grand jury proceedings,' Gelbard v. United States, 408 U.S. 41, 70, 92 S.Ct. 2357 [2372], 33 L.Ed.2d 179 (1972) (White, J., concurring), effectively transforming them into preliminary trials on the merits. In some cases the delay...