Dwayne Steven Spence v. State of Maryland, No. 7, September Term 2014

CONSTITUTIONAL LAW — FOURTH AMENDMENT — SEARCH INCIDENT
TO ARREST — The warrantless search of the digital information on an arrestee’s cell
phone incident to a lawful arrest, save for case-specific exigent circumstances, is
unreasonable in violation of the Fourth Amendment. Under this rule, established in Riley
v. California, 134 S. Ct. 2473 (2014), the police officer may examine only the physical
aspects of a cell phone in the interest of officer safety. The search of the most recent text
messages on an arrestee’s cell phone went beyond the mere physical search of the phone
and violated the arrestee’s Fourth Amendment rights.

CONSTITUTIONAL LAW — FOURTH AMENDMENT — GOOD FAITH
DOCTRINE — Courts generally will not suppress evidence where law enforcement
officers act in objectively reasonable reliance on a warrant or statute or, as was decided in
Davis v. United States, 131 S. Ct. 2419 (2011), binding precedent under which their
conduct is lawful. This principle is known as the good-faith exception to the exclusionary
rule. The police officer’s warrantless search of a cell phone incident to the defendant’s
lawful arrest, prior to the Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473
(2014), was done in reasonable reliance on then-binding precedent, United States v.
Robinson, 414 U.S. 218 (1973). By application of the good faith doctrine, the information
obtained from the cell phone is not suppressed.
Circuit Court for Caroline County
Case No. 05-K-11-008640
Argued: January 8, 2015
                                          IN THE COURT OF APPEALS
                                                OF MARYLAND

                                                         No. 7

                                                September Term, 2014



                                            DWAYNE STEVEN SPENCE

                                                           v.

                                               STATE OF MARYLAND



                                          Barbera, C.J.,
                                          *Harrell
                                          Battaglia
                                          Greene
                                          McDonald
                                          Watts
                                          Raker, Irma S. (Retired, Specially
                                          Assigned)
                                                    JJ.


                                               Opinion by Barbera, C.J.


                                          Filed: July 27, 2015

                                    *Harrell, J., now retired, participated in the
                                    hearing and conference of this case while an
                                    active member of this Court; after being recalled
                                    pursuant to the Constitution, Article IV, Section
                                    3A, he also participated in the decision and
                                    adoption of this opinion.
       Petitioner Dwayne Spence was convicted in the Circuit Court for Caroline County

of possession with intent to distribute marijuana, possession of marijuana, and possession

of drug paraphernalia. The principal issue we decide in this case is whether the court was

required to deny Petitioner’s motion to suppress text messages that the police obtained

during the search of his cell phone incident to his lawful arrest.

       Petitioner appealed the judgment of conviction to the Court of Special Appeals and,

while the case was pending in that court, filed a petition for writ of certiorari, which we

granted. We then stayed all proceedings in this case until the United States Supreme Court

issued its decisions in Riley v. California, cert. granted, 134 S. Ct. 999 (2014), and United

States v. Wurie, cert. granted, 134 S. Ct. 999 (2014).      On June 25, 2014, the Supreme

Court issued a consolidated opinion in those two cases. Riley v. California, 134 S. Ct. 2473

(2014).

       Following the parties’ submission of their briefs, we heard arguments in the case on

the same day as two other cases, Demby v. State, No. 11, Sept. Term 2014, and Sinclair v.

State, No. 43, Sept. Term 2014. The three cases present the common question of whether,

in light of the Supreme Court’s decision in Riley, the respective petitioners were entitled to

the suppression of data obtained by the police during a warrantless search of the cell phones

incident to a lawful arrest. For reasons we explain later in this opinion, we hold that the

trial court in the present case properly denied the motion to suppress the data obtained from

Petitioner’s cell phone.

                                              I.

                       The Suppression Hearing, Trial, and Appeal
       Petitioner sought suppression of text messages, found on his cellphone at the time

of his arrest, that the State ultimately used in convicting him of several drug-related

offenses. Sergeant Nancy Nagel (“Sergeant Nagel”) of the Caroline County Sheriff’s

Office testified as the sole witness for the State at the hearing on the motion.

       Sergeant Nagel testified that, during the early morning hours of January 13, 2011,

she responded to a report of a robbery at a mobile home in a trailer park in Preston,

Maryland. After completing her interview with the robbery victims, Sergeant Nagel

noticed fresh footprints in the snow outside of the victims’ home, leading from a doorstep

a few mobile homes away directly to the robbery victims’ home. While Sergeant Nagel

and at least one other officer who had arrived on the scene were investigating the footprints,

a woman stepped out from the home where the footprints began and identified herself as

Tonya LaLone (“Ms. LaLone”).

       Sergeant Nagel asked Ms. LaLone if she could come inside to speak about the

robbery that had just occurred. Ms. LaLone consented and, as they stepped into the home,

Sergeant Nagel asked who else, if anyone, was present. Ms. LaLone informed Sergeant

Nagel that her two parents, who owned the home, and her three-year-old son were present.

She then pointed to a room where, she said, her son was asleep. Sergeant Nagel heard a

loud noise emanating from that room. She asked again who was in the room. Sergeant

Nagel then drew her weapon, evidently prompting Ms. LaLone to say that her boyfriend,

Dwayne Steven Spence (“Petitioner”), was inside the bedroom. Sergeant Nagel ordered

him out.


                                              2
       Sergeant Nagel testified that, as Petitioner exited the bedroom, he had in his hand a

cell phone and was using it. Sergeant Nagel and at least one other officer ordered Petitioner

to put his hands in the air. He obeyed, keeping his cell phone in his hand. Sergeant Nagel

then asked Petitioner to sit on a chair. As Petitioner sat down, he continued using the

phone. Sergeant Nagel asked Petitioner to place the phone on an end table, which he did.

At that time, Sergeant Nagel re-holstered her gun.

       The officers frisked Petitioner to ensure that he was not armed. Sergeant Nagel then

interviewed Ms. LaLone and Petitioner and asked Ms. LaLone to wake her parents. With

everyone together, Sergeant Nagel informed them that there had been a robbery in the

trailer park and she was searching for shoes matching the imprints outside and the stolen

prescription pills. Sergeant Nagel obtained consent to search the home.

       While searching the bedroom from which Petitioner had exited, Sergeant Nagel

found a black wallet propped against an aquarium and, behind the wallet, a clear bag

containing what she recognized as marijuana.           The wallet contained Petitioner’s

identification card. Inside a cabinet in the room were additional bags of marijuana, drug

paraphernalia, and a small digital scale. Nagel did not find any evidence linking Petitioner

to the robbery.

       The police placed Ms. LaLone and Petitioner under arrest. Sergeant Nagel decided

to search the cell phone Petitioner had been using when he walked out of the bedroom. She

did that “in an attempt to um, possibly discover any other kind of evidence that could be

destroyed[.]” Sergeant Nagel described what she did next: “I activated the screen and the

message folder. When I opened up the message folder that’s when I found . . . located text
                                         3
messages from the previous night leading into that morning . . . [w]here there were text

messages that were indicative of the distribution of [controlled dangerous substances].”

Sergeant Nagel also saw two messages related to the robbery she was investigating.

Sergeant Nagel could discern that those two messages had not been read or answered.

Petitioner informed Nagel that he had no knowledge of the robbery; he was likely asleep

when those text messages came in; and the incoming messages were from his brother’s

phone.

         Sergeant Nagel testified that, once she “realized that, that phone had evidentiary

value[,]” she “went ahead and seized the phone.” She expressed concerns about either

remote or instantaneous wiping of the cell phone.1 The police later obtained a warrant to

search the data in the cell phone.

         Petitioner also testified at the suppression hearing.      His version of events

surrounding the search of the cell phone was almost identical to that of Sergeant Nagel.

He clarified that the phone was a “flip phone,” new to him at the time of his arrest. He

added that the cellphone was a “smartphone” with internet capabilities and a touch screen.

         The court denied the motion to suppress the drug-related text messages that Sergeant

Nagel read at the time of Petitioner’s arrest as well as the additional text messages that

were produced later, as the result of the search warrant. The court ruled that the warrantless

search of the cell phone was reasonable under the Fourth Amendment. The court reasoned


1
 A cell phone can be wiped remotely when, by request to the cellular provider, the provider
resets the phone to factory settings, erasing all data that had been in the device.

                                              4
that the warrantless search was limited to the few text messages that Sergeant Nagel had

read. Moreover, based on Sergeant Nagel’s observing Petitioner earlier using the phone,

the sergeant reasonably could be concerned about destruction of evidence and that

Petitioner might have been notifying others about the presence of law enforcement. The

court concluded that the exigency of the situation—an armed robber on the loose and police

suspicion that Petitioner may have been communicating with the perpetrator or a third party

about police presence—validated the immediate search of the phone.

       On August 24, 2011, Petitioner appeared before the court and, in a colloquy with

the trial judge, waived his right to a jury trial. Following that colloquy, the parties

proceeded to trial based on an agreed upon statement of facts. Included in that statement

were facts relating to the text messages that Petitioner sought to suppress. Petitioner was

convicted and sentenced, and this appeal followed.

                The Search Incident to Arrest Exception—Then and Now

       The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” In

furtherance of that protection, it has long been understood that searches made without a

warrant are presumptively unreasonable. Kyllo v. United States, 533 U.S. 27, 32 (2001).

Yet, over time, the Supreme Court has recognized, as reasonable under the Fourth

Amendment, a number of exceptions to the warrant requirement. One such exception,

often relied upon by law enforcement, permits officers to conduct a search incident to a

lawful arrest. The origin of this exception is found in Chimel v. California, 395 U.S. 752

(1969).
                                            5
       In Chimel, the Supreme Court defined the contours of the search incident to arrest

exception and, in doing that, identified officer safety and prevention of evidence

destruction as the rationales for the exception. The Supreme Court explained that, when

an officer makes an arrest, “it is reasonable for the arresting officer to search the person

arrested in order to remove any weapons that the latter might seek to use in order to resist

arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and

the arrest itself frustrated.” Id. at 763.   It is also “reasonable for the arresting officer to

search for and seize any evidence on the arrestee’s person in order to prevent its

concealment or destruction[,]” and for the same reasons to search “the area into which an

arrestee might reach in order to grab a weapon or evidentiary items[.]” Id. at 763. The

Court concluded that the potential for any of this to occur during an arrest provides “ample

justification” to search “the arrestee’s person and the area ‘within his immediate control.’”

Id.

       The Supreme Court further developed the scope of the search incident to arrest

exception in United States v. Robinson, 414 U.S. 218 (1973). Robinson had been arrested

for driving on a suspended license. The arresting officer, while conducting a pat down of

Robinson, felt an object in his coat pocket that the officer could not identify. The officer

removed that object—a crumpled cigarette packet—opened it, and found capsules of

heroin inside. Id. at 220-23. The Court upheld the warrantless search as a proper search

incident to Robinson’s arrest. The Court emphasized that “[t]he authority to search the

person incident to a lawful custodial arrest, while based upon the need to disarm and to

discover evidence, does not depend on what a court may later decide was the probability
                                          6
in a particular arrest situation that weapons or evidence would in fact be found upon the

person of the suspect.” Id. at 235. Instead, a “custodial arrest of a suspect based on

probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being

lawful, a search incident to the arrest requires no additional justification.” Id.

       Robinson created a bright line rule—eliminating the need for police officers and

courts to assess on a case-by-case basis the danger to the arresting officer or the likelihood

of destruction of evidence.

       It is the fact of the lawful arrest which establishes the authority to search, and
       we hold that in the case of a lawful custodial arrest a full search of the person
       is not only an exception to the warrant requirement of the Fourth
       Amendment, but is also a ‘reasonable’ search under that Amendment.”

Id. at 235.

       The Supreme Court left intact the search incident to arrest doctrine, as explicated in

Robinson, until deciding Riley v. California, 134 S. Ct. 2473 (2014).2 The Court held, in

an opinion consolidating two cases, Riley and United States v. Wurie, that searches of cell

phones fall outside the permitted scope of the search incident to arrest, thereby creating a

sea-change in this area of Fourth Amendment jurisprudence. Id. at 2480.


2
  Until the Supreme Court decided Riley v. California, the only modification the Court
made to the search incident to arrest exception was to rework the exception as it had been
applied for many years to searches of vehicles incident to arrest. In Arizona v. Gant, 556
U.S. 332 (2009), the Court rejected the rule established in New York v. Belton, 453 U.S.
454 (1981), insofar as the Belton rule had allowed an automatic search of the passenger
area of the vehicle after the arrest of a recent occupant the vehicle. Now, under Gant,
“[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is
within reaching distance of the passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the offense of arrest.” 556 U.S. at
351.

                                               7
       In Riley, the officer stopped Riley for driving on an expired registration tags. During

the stop, the officer arrested Riley, searched him, and found a cell phone and other evidence

on his person linking him to a criminal gang. The officer’s search of the contents of the

cell phone revealed messages that he believed further connected Riley to a gang. Id. at

2480. In Wurie, an officer had observed Petitioner Wurie make an apparent drug sale from

his car. The officer arrested him and took him to the police station. While at the police

station, Wurie’s flip phone kept ringing and with each ring, “my house” would appear on

the phone’s main screen. Officers eventually opened Wurie’s flip phone, observed a

picture on the screen, and searched through the phone to find the phone number associated

with “my house.” Id. at 2481.

       The Supreme Court held, in both cases, that the warrantless searches of the cell

phones did not fall within the search incident to arrest exception and, consequently, were

done in violation of Riley’s and Wurie’s Fourth Amendment rights. Id. at 2484-85. The

Court, observing that today’s cell phones are “based on technology nearly inconceivable

just a few decades ago, when . . . Robinson [was] decided[,]” id. at 2484, concluded that

the search of a cell phone’s data cannot be justified by either officer safety or prevention

of the destruction of evidence, the two traditional rationales that make a warrantless search

incident to arrest reasonable under the Fourth Amendment, id. at 2485-88. Consequently,

in the context of cell phone searches, application of Chimel, as further explicated in

Robinson, does not comport with the dictates of the Fourth Amendment; therefore,

“officers must generally secure a warrant” before conducting “searches of data on cell

phones[.]” Id. at 2485.
                                              8
       The Court was careful to note that concern for officer safety justifies a limited

physical inspection of a cell phone, within the scope of the search incident to arrest

exception: “Law enforcement officers remain free to examine the physical aspects of a

phone to ensure that it will not be used as a weapon—say, to determine whether there is a

razor blade hidden between the phone and its case.” Id. Moreover, “[t]o the extent dangers

to arresting officers may be implicated in a particular way in a particular case, they are

better addressed through consideration of case-specific exceptions to the warrant

requirement, such as the one for exigent circumstances.” Id. at 2486; see also id. at 2494.

Nevertheless, “[o]nce an officer has secured a phone and eliminated any potential physical

threats . . . data on the phone can endanger no one.” Id. at 2485.

                                 The Parties’ Contentions

       Petitioner and the State agree that, under the general rule announced in Riley,

Sergeant Nagel’s search of Petitioner’s cell phone does not come within the permitted

scope of a search incident to a lawful arrest. The State does not concede, however, that

Petitioner is entitled to suppression of the data the police captured from his cell phone.

       The State advances two arguments in support of the court’s refusal to exclude the

data captured from Petitioner’s cell phone.        First, under the exigent circumstances

exception to the warrant requirement (of which the Riley Court spoke as an exception to

the general rule prohibiting warrantless cell phone searches), Sergeant Nagel acted

reasonably when she “activated” the screen of the cell phone, opened the message folder,

and read the drug-related text messages. Second, even if the search of the cell phone

violated Petitioner’s Fourth Amendment rights, it was properly admitted into evidence
                                         9
under the “good faith” exception to the exclusionary rule. We need not address the first of

the State’s arguments, because we agree with the second.

                                  The Good Faith Doctrine

       The good faith doctrine provides that the exclusionary rule does not apply to

evidence the police seize in objectively reasonable reliance upon a search warrant or then-

controlling statutory or case law. The doctrine developed in the Fourth Amendment

jurisprudence as a response to the so-called exclusionary rule. Broadly described, the

exclusionary rule requires that evidence obtained in violation of the Fourth Amendment

must be excluded from trial.

       The exclusionary rule is a “‘prudential’ doctrine, created by [the Court] to ‘compel

respect for the constitutional guaranty.’” Davis v. United States, 131 S. Ct. 2419, 2426

(2011). “Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the

injury’ occasioned by an unconstitutional search.” Id. at 2426 (quoting Stone v. Powell,

428 U.S. 465, 486 (1976)). Because “the [exclusionary] rule’s sole purpose . . . is to deter

future Fourth Amendment violations,” id. (citing Herring v. United States, 555 U.S. 135,

141 (2009); United States v. Leon, 468 U.S. 897, 921 n.22 (1984); Elkins v. United States,

364 U.S. 206, 217 (1960)), the Supreme Court’s “cases have thus limited the rule’s

operation to situations in which this purpose is ‘thought most efficaciously served.” Id. at

2426 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).

       The Court in Leon held that the exclusionary rule does not apply to evidence police

seize in “objectively reasonable reliance” upon a search warrant later determined to be

invalid. 468 U.S. at 922. Then, in Illinois v. Krull, 480 U.S. 340, 349-50 (1987), the Court
                                              10
extended application of the good faith doctrine to actions that police take in reasonable

reliance on a subsequently invalidated statute. The trend continued with Arizona v. Evans,

514 U.S. 1 (1995), in which the Court applied the doctrine to law enforcement’s reasonable

reliance on information about a warrant, in a judiciary-maintained database, and then, with

Herring, 555 U.S. at 137 (holding that misinformation contained in a police-maintained

database, as the result of an “isolated” instance of negligence by a police employee, did not

require exclusion of evidence seized by police who reasonably relied on that

misinformation). Most recently, in Davis, the Supreme Court held that the exclusionary

rule does not apply to police action taken in reasonable reliance on then-binding appellate

precedent.

       We twice have applied the good faith doctrine, as was done in Davis, 2419 S. Ct. at

2423-24, to “searches conducted in objectively reasonable reliance on binding appellate

precedent[.]” See Kelly v. State, 436 Md. 406 (2013), cert. denied, 135 S. Ct. 401 (2014);

Briscoe v. State, 422 Md. 384 (2011).        We understood, moreover, that the binding

precedent upon which the officer relied need not be “factually the same as the police

conduct in question.” Kelly, 436 Md. at 426.

       In Briscoe, we held that when the police seized evidence from a locked glove

compartment, prior to the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332

(2009), they acted in reasonable reliance on then-binding precedent established by New

York v. Belton, 453 U.S. 454 (1981). 422 Md. at 409-10. In Kelly, the police, prior to the

Supreme Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012), attached a

Global Positioning System (GPS) to Kelly’s car, without a warrant, and tracked its
                                      11
movements for 11 days. We recognized that “no Maryland appellate decision has held

expressly that the attachment and use of a GPS tracking device is permissible under the

Fourth Amendment.” Kelly, 436 Md. at 426. Yet, the police acted in reasonable reliance

on the then-binding precedent of United States v. Knotts, 460 U.S. 276 (1983), which

allowed the use of a mechanical device, attached to the exterior of a vehicle, to track that

vehicle’s movement in public. Id.

       The State contends that Sergeant Nagel, in searching the phone initially and reading

those text messages, was acting in good faith reliance on then-controlling authority in

Maryland, namely, Robinson and the cases in Maryland applying Robinson and its progeny.

E.g., Carter v. State, 367 Md. 447, 460-62 (2002); Colvin v. State, 299 Md. 88, 97-98

(1984). We agree.

       Riley no doubt represents the Supreme Court’s effort to adjust Fourth Amendment

jurisprudence to the quickly evolving digital age. The Riley Court understood, though, that

its holding represents a significant departure from what had long been the search incident

to arrest rule, as described and applied in Robinson and its progeny. See Riley, 134 S. Ct.

at 2484 (acknowledging that “a mechanical application of Robinson might well support the

warrantless searches at issue here.”). The categorical rule established by Robinson has

been followed in Maryland. It follows that Sergeant Nagel acted in objectively reasonable

reliance on then-binding authority when she conducted the warrantless search of the cell

phone, and the Davis good-faith exception to the exclusionary rule applies to the search.

       At least one other Circuit Court of Appeals has held similarly, see United States v.

Gary, NO. 13-1788, 2015 WL 3814617 (7th Cir. June 19, 2015) (applying the Davis good
                                       12
faith doctrine to uphold a pre-Riley search of a cell phone incident to a lawful arrest, as

governed by the arresting officer’s objectively reasonable reliance upon Robinson). And,

to our knowledge, none of the remaining circuit courts of appeal has held differently.3

         In sum, the police acted in good faith in searching Petitioner’s cell phone. The

Circuit Court, therefore, properly denied Petitioner’s motion to suppress the text messages

on his cell phone that were the product of that search.

                                                 II.

         Petitioner elected to waive a jury trial in favor of a trial before the court on an agreed

statement of facts. The court engaged in a colloquy with Petitioner, pursuant to the dictates

of Md. Rule 4-246(b),4 to ascertain whether he understood his right to a jury trial and


3
  Our research discloses only a few reported decisions at the lower level of the federal
courts that reach the same conclusion, United States v. Mitchell, No. 3:13-CR-128-L-1,
2015 WL 437673 (N.D. Tex. Feb. 2, 2015); United States v. Caldwell, No. 1:13-CR-128,
2015 WL 179583 (E.D. Tenn. Jan. 14, 2015); United States v. Clark, 29 F. Supp. 3d 1131
(E.D. Tenn. 2014); United States v. Spears, 31 F. Supp. 3d 869 (N.D. Tex. 2014); United
States v. Garcia, 68 F. Supp. 3d 1113 (N.D. Cal. 2014); United States v. Miller, 50 F. Supp.
3d 717 (D. Md. 2014). Cf. United States v. Eisenhour, 44 F. Supp. 3d 1028, 1032 (D. Nev.
2014) (suppressing evidence seized in the warrantless search of a cell phone on the ground
that there was no binding precedent in the Ninth Circuit “explicitly rul[ing] that digital data
on a cell phone can be searched incident to arrest”).
4
    Md. Rule 4-246(b) reads:

         Procedure for acceptance of waiver. A defendant may waive the right to a
         trial by jury at any time before the commencement of trial. The court may
         not accept the waiver until, after an examination of the defendant on the
         record in open court conducted by the court, the State’s Attorney, the
         attorney for the defendant, or any combination thereof, the court determines
         and announces on the record that the waiver is made knowingly and
         voluntarily.

                                                13
voluntarily desired to waive that right. Following that colloquy, Petitioner declared his

wish to waive a jury trial. The court accepted Petitioner’s waiver, stating that it was “freely

and voluntarily given.” The court did not announce on the record a finding that Petitioner’s

waiver was made “knowingly and voluntarily,” as required by Rule 4-246(b).

         Petitioner argues that the court’s violation of Rule 4-246(b) requires reversal of the

judgment of conviction. Petitioner acknowledges our holdings in Nalls v. State, 437 Md.

674, 693-94 (2014), and Szwed v. State, 438 Md. 1, 5 (2014), that, in order to preserve for

appellate review a claim of non-compliance with Maryland Rule 4-246(b), the defense is

required to object at the time of the waiver inquiry. Petitioner argues nonetheless that we

should not apply that holding here because it was not clear, prior to Nalls, that a

contemporaneous objection was required.

         The State urges us either to dismiss this claim, on the ground that we granted

certiorari on this question improvidently, or to refuse to review the claim, under Maryland

Rule 8-131(a),5 for want of a contemporaneous objection. We shall take the latter course

of action proposed by the State.



5
    Md. Rule 8-131(a) reads:

         Generally. The issues of jurisdiction of the trial court over the subject matter
         and, unless waived under Rule 2-322, over a person may be raised in and
         decided by the appellate court whether or not raised in and decided by the
         trial court. Ordinarily, the appellate court will not decide any other issue
         unless it plainly appears by the record to have been raised in or decided by
         the trial court, but the Court may decide such an issue if necessary or
         desirable to guide the trial court or to avoid the expense and delay of another
         appeal.

                                               14
       We made it perfectly clear in Nalls that a claimed failure of the court to adhere

strictly with the requirements of Rule 4-246(b) requires a contemporaneous objection in

order to be challenged on appeal. 437 Md. at 684. Nalls involved two separate cases, Nalls

v. State, No. 54, Sept. Term, 2013, and Melvin v. State, No. 95, Sept. Term, 2013, which

we consolidated for purposes of our opinion. We exercised our discretion in each of those

cases to reach the merits of near-identical, unpreserved claims of error (claims that were

much like the claim of error here). See also Szwed, 438 Md. at 5. We did so in order to

clarify the misconception, held by petitioners Nalls and Melvin, that this Court had “created

an exception to the general contemporaneous objection requirement to preserve an issue

for appeal[]” in an earlier decision, Valonis v. State, 431 Md. 551 (2013). Id. We made

clear in Nalls, 437 Md. at 693-94, that Valonis is not to be understood as creating such an

exception from the requirement of a contemporaneous objection, set forth in Rule 8-131(a),

for claimed violations of Rule 4-246(b). In short, we did not create in Nalls a “change in

procedure,” as Petitioner contends; on the contrary, we reinforced in that case what long

has been the preservation rule, set forth in the plain language of Rule 8-131(a), which

requires a contemporaneous objection.

       Petitioner, by failing to object at the time the court accepted his waiver of his right

to a jury trial, has failed to preserve his claim of error for this Court’s review. We therefore

do not consider the claim.

                                            JUDGMENT OF THE CIRCUIT COURT
                                            FOR CAROLINE COUNTY AFFIRMED;
                                            COSTS TO BE PAID BY PETITIONER.


                                              15
