216 [80 O p. Att’y

1 This opinion modifies

earlier advice o f counse l, to the extent that the earlier advice suggested that no affidavit was necessary. However, as explained in Part II below, a special policeofficer may file an application without ap

pearing before a judicia l office r to sign the

affida vit.

2 The 1880 l aw applied only torailroa d, steamb oat, canal, furnace, colliery, and rollin

g millcompanies. It was extended to all corporations by Chapter 217 of the Laws of Maryland 1918.

LAW ENFORCEMENT OFFI CERS
S PECIAL P OLICE O FFICERS

) I NVESTIGATORY A U THORITY

) F ILING OF C HARGES

November 8, 1995

The Ho nora ble M ary L ouise Preis House of D elegates
You have request ed our opi nion c oncerning t he authori ty of speci al police offi cers t o conduct cr iminal investi gations , col lect evidence, and fil e an appli cati on for a stat ement of charge s. You have also as ke d us t o discuss the proce dure involved in an app licatio n fo r a sta tem ent o f ch arg es. Our opinion i s as fol lows: A speci al poli ce offi cermay conduct crim in al i nvesti gations and coll ect evi dence rel ating to crimes that affect the pro perty covered by the off icer’ s commission. In addition, a special police officer may f ile an applic ation f

or a st atement of charges by affi davit wit hout having to appear bef ore a judi cial officer. 1

I
Investi gationalAuthority of Speci al Poli ce Officer s
In 1880, the fir st l aw was enacted authorizing the G over nor to issue com miss ions to spec ial po lice men to protect specif ied propert y. 2 T his law, Chapter

460 of the Laws of Maryland 1880, gave to these spec ial police me n “all th e auth ority and pow ers he ldGen. 216] 217

3 Legislat ion passe d in 1974 a

nd 1975 limi

ted the power of a

rrest to “a specialpolicema

n with a probationary or permanent appointment as a security officer or a member of a ny industrial police forcewho holds a specialpolice c ommission, a nd has completed the basic t raining course

for police officers as established by the Police Training Commission ...,” but did not limit t

he exer cise of other powers. and exerci sed by const ables at common law and unde r the st atute s of this State, and also al l the authority and pow ers conferr ed by law on police men in the ci ty of Baltimore.”
The Court of Appeals read thi s law to gi ve these of ficer s allof the powers of

reg ular po lice offic ers an d to ren der the m p ublic officers wh ile ex ercis ing tho se p ow ers. The Tolchester Beach Imp. Co. v. Steirmeier , 72 M d. 31 3, 20 A. 1 88 ( 189 0). See also 22 Opinions of the A tto rne y General470 (1937). The law w as also inter preted by the Attorney General to permit exercise of these pow ers outsi de of the property f or which the c omm issi on was issued , so long as t

he acti on taken re late d to that propert y. 45 Opinions of the Attorn ey G ener al 180 (1960); 26 Opinions of the Attorney General286 (1941) ; 20 Op inions of the Attorney General 367 (1935).
In 1969, the General Assembly rewrote t he law and combined it with the ex isting law on sp ecial p oli ce o ffi cers f or government propert y. Chapter58 1, Laws of Maryland 1969. This law set out the pow ers of s pecia l polic e offi cers i n greate r detai l, r atif ying the expansive gloss th at had been place d up on it by the C ourt o f Ap peals and opi nio ns o f this offic e. See Gra y v. Sta te , 38 Md. App. 343, 352 -53 , 380 A.2 d 10 71 ( 197 7), cert. denied 282 M d. 732 (19 78).
Currentlaw is es senti ally t he same as that

enacted i n 1969. 3 Article 41, §4-905 of the Maryland Code p rovides as follows:

Each person appointe d under this sub title as a spec ia l poli ceman is charge d with the protection and preser

vation of peace and good orderon the proper

ty described in t

he applic ationfor the Comm issi on. He has th e power to arr est per sons who tres pass or com mit of

fens es ther eon. He has, and may ex ercis e, the powers of a polic e offi cer upon the propert

y described in the applic ation f or218 [80 O p. Att’y
the comm ission and may exercise these pow ers in a ny cou nty o r city of th e State in c o nnecti on with the c are, c ustody, and protection of ot

her proper

ty of t he requesting autho rity or oth er pro perty, re al or pe rsona l, forwhich it ha s assumed an ob lig ation to ma intain o r prote ct. The power to arr est nece ssari ly impli es the power t o determine who oug ht to be arres ted for a parti cular of

fense. Thu s, this statu te clear ly provi des authority f or a speci al poli ce officer to inves tigate any offens e that

relat es to t

he propert

y described in the applic ation fora com miss ion, an d, as p art of tha t in vesti gation, to gathe r evidence. Further

m ore , so long as t

he offens e involve s that propert y, the invest igati on may involve are as outsi de the prope rty.

II Applicati on for Statement of Charges
A. Special Police Officer As “Peace O fficer” Maryland Rule 4-211(b) governs the fil ing of a s tate ment of charges. It provides as follows:

(1) Except as other

wise p r ovided by stat ute, a judic ial of

ficer may file a s tate ment of charge s in the D istrict Co urt aga inst a defendant

wh o has not b een a rrest ed for t hat offense upon writ ten appl icat ion conta ining an affidav it showing probabl e caus e that t he defenda nt com mitted the o ffense charg ed. If not executed by a pe a ce officer, th e affida vit shall be ma de and signed be fore a j udicia l officer. (2) When a defendant

is ar rest ed without a wa rrant, the officer wh o has cu stody of t h e defendant

shallforthwith cause a

stat ement of charges to be fi ledagain st the de fend ant in the Distri ct Court. At t

he same time or as soon th ereaft er as is pr acti cable, the off icer s hal l file an a ff

idavit contai ning fact s showingGen. 216] 219

4 At the time Huger was dec ided, the rule in effect was Maryland District Rule 720a and b. The substance of the rule has not change d.

prob able cause that the de fendant c omm itt ed the off ense charge d.
In Hu ger v . State , 285 Md. 347, 40 2 A. 2d 880 (1979), the Cou rt of A ppea ls considered whether a special police offi cer was a “peace off

icer, ” within t

he meaning of thi s rule for purpos es of the fil ing of a st atemen t of cha rges af ter a s uspect has been arre sted. The Cou rt noted that the rules did not define the term “peace o fficer” but that th e commonly understood meaning i s “a pers on charged with the du ty to enfo rce an d pre serve the pu blic peace.” Huger , 285 Md. at 35 2 (quoti ng Black’s Law D ictionary(4th ed. 1968)). The Co urt con clude d that a spec ial police officer is a “pe ace o fficer”:

Ac cord in g to [ Black’s Law D ictionary ], “pub lic peac e” is “[t] he peace or tr anquility of the com mu nity in general ; the good order and repose of the p eople composing a state .

... ” A “polic e force ” is “[a] body of persons t

rained in met ho ds of l aw e nf

or ce men t an d c rime preventi on and detection, and g iven a utho rity to maintain t

he peace, s afety, and order of the com m uni ty,” that i s, t o enforce and preser ve the public pe ace.. .. A “pol iceman” or “pol ice officer” is “[a] member of a polic e force. ” Id

. Therefore , a policem an is a peac e officer. Since a specia l police man may exercise to t he full the pow ers of a police o fficer i n the circumst ances here, he also is a p eace officer.
Id. (Citation om itted).
The Court’s c onclusi on that a specialpolice offi cer is a peace offi cerfor purpos es of Maryland Rule 4-211(b) (2 ) is equ ally ap plicab le to M aryland R ule 4-211 (b)(1). 4 The refore , a spec ia l police officer m ay file a n app lication f or a sta tem ent of charg es withou t being requ ired to appea r before a judicial officer.220 [80 O p. Att’y

5 It is our understanding that some special police officers who have placed a defendant

under arrest have attempted to apply for a state ment of charge s, rather than causing a stateme nt of cha rges tobe filed. The special police officers want thelocal police to come and arrest the defenda ntand take over the processing. This alternative is not ava ilable under the r

ules; hence, the Commissioners have ref used t o accept an application for statemen t of char ges when the defe ndant alr eady is un

der arr est. B. Procedure
Tw o sep arate procedures are appl icabl e: one where an arrest has alr eady been made, and one where no ar rest has been made.
An officer w ho h as arre sted a d efend ant w it hou t a warrant completes a statem ent of c harg es (form DC /CR 2) an d sub mits it to the Com missione r for fil ing; the Co mm issione r sim ply initials it. Th e offi cer al so completes and fil es the “a ffi davit c ontaining fac t s showing probable cause that the defendant committed the offense cha rge d” ( form DC /CR 4).
Ru le 4-211(b)( 2) provi des that the affidav it is to be file d w ith the stat ement of charge s or as s oon therea fter as prac ticabl e. In practi ce, it is su bmitted when the stat ement of charge s and the defe ndant are pres ented t o the Commissioner. The Comm issi on e r t hen pro ceeds with t

he initial a

ppearance under

Rule 4-213, including a pretrial r elease determination under Ru le 4-216. I f the Comm issi oner determines that the defe ndantshould not be rele ased on personalrecogniz ance and the de fendantis unabl e to post bond, the arres ting of

ficer rem ains re spon sible to complete the proce ssing of the def

endant, including delive ry to t he place of

detent ion. 5
If an arres t has not

been made, the officer, including a specia l police officer, completes an “Application for Statement of Charges” (form DC/CR 1) . Bec ause a pea ce offic er is the a pplica nt/affian t, the form may be co mpleted an d signed out side t he presence of the Com missione r. On receipt and revie w of the appli cati on, the Comm issi oner determi nes whether t here is probable c ause to bel ieve that the defend ant has com mitted a crim e. If so, the Commissioner completes and fil es a st atement of c harges ( form DC/CR 3). The Comm issi oner then determines whether a sum mons o r w arrant sho uld be is sue d.Gen. 216] 221
III
Conclusion
In sum ma ry, it is our opini on that a specialpolice offi cer may (i ) cond uct crim inal inv estigatio ns an d colle ct evid ence relating to crimes that a ffect

the proper

ty covere d by the off

icer’ s commission and (ii ) fi le an appl icat ion for charges wit

hout having to appear bef ore a jud icial o ffice r. J. Joseph C urran, Jr. AttorneyGeneral
Kathryn M. Rowe Assist ant Attorney General
Jack Sch wa rtz Chief Counsel Opinions & Advice