Adams v. State

• Decision Date: 13 January 1981
• Docket Number: No. 130,130
• Citation: 424 A.2d 344,289 Md. 221
• Parties: James Leslie ADAMS, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 221

289 Md. 221

424 A.2d 344

James Leslie ADAMS, Jr. v. STATE of Maryland.

No. 130.

Court of Appeals of Maryland.

Jan. 13, 1981.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Alexander L. Cummings, Asst. Atty. Gen., Baltimore

(Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

The issue we are asked to decide in this case is whether a telephone call initiated by the police from the police station to a suspect, which is listened to by the victim of a crime on an extension phone for purposes of voice identification, amounts to an interception made in violation of the Maryland Wiretapping and Electronic Surveillance Law.

The pertinent facts are brief. At a jury trial in the Circuit Court for Anne Arundel County, the testimony revealed that the victim was awakened in the night by a pain on the side of her neck. She saw a man standing in front of her and became aware of blood running from her neck, down her arm and hand and onto the floor. Her attacker then struck her on the side, for no apparent reason. He then performed cunnilingus and raped her. Throughout this assault, in an attempt to persuade her assailant to spare her life, the victim engaged the man in conversation. When the intruder went to another room of the apartment, the victim seized the opportunity to escape and called the police. She was later treated for her injuries.

During the course of the police investigation the victim made tentative photographic identifications; however, the police decided to conduct a voice identification via telephone. The victim listened in on an extension phone within the station while a policewoman, Detective Deans, made the calls. The mouthpiece of the victim's extension phone was removed so that the receiving party was unaware of the presence of the victim. During each call Detective Deans represented herself as Miss Wetzel from the Department of Social Services. Upon the last of four calls, the victim, a student of music who had studied voice in college, immediately identified the appellant's voice as that of her attacker.

The appellant contends before us, as he did below, that the trial court erred when it failed to suppress the voice identification which was an unauthorized interception, procured in violation of Maryland wiretap laws. The State in rebuttal contends that use of the extension phone in this case was not an interception and thus, no court order was required. We turn to the statute to resolve this dispute.

Maryland's Wiretapping and Electronic Surveillance Law is codified in Maryland Code (1974, 1978 Cum.Supp.), §§ 10-401 to 10-412 of the Courts and Judicial Proceedings Article, and tracks extensively Title III of the Omnibus Crime Control and Safe Streets Act of 1968, presently codified as 18 U.S.C. §§ 2510-2520 (1976).

The Maryland Statute defines certain terms in § 10-401 as follows:

(1) "Wire Communications" means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of communications;

(2) "Oral Communication" means any conversation or words spoken to or by any person in private conversation;

(3) "Intercept" means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device;

(4) "Electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire or oral communication other than:

(i) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (a) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.

Section 10-402 provides in part, as follows:

(a) Unlawful acts. Except as otherwise specifically provided in this subtitle it is unlawful for any person to:

(1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire or oral communication;

(2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subtitle; or

(3) Wilfully use, or endeavor to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subtitle.

(b) Penalty. Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than five years or a fine of not more than $10,000, or both.

(c) Lawful acts. ...

It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire or oral communication in order to provide evidence of the commission of the offenses of murder, kidnapping, gambling, robbery, any felony punishable under the "Arson and Burning" subheading of Article 27, bribery, extortion, or dealing in controlled dangerous substances, or any conspiracy to commit any of these offenses, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

(3) It is lawful under this subtitle for a person to intercept a wire or oral communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act.

Appellant maintains that while it is true that the federal and Maryland statutes are similar, they differ in at least one fundamental respect. The federal statute authorizes an intercept where only one of the parties to the communication consents; however, the Maryland statute is more restrictive, requiring the consent of all parties. The appellant logically argues that since he did not consent to the victim's use of the extension phone, the identification of his voice was made in violation of the Maryland statute.

The appellant further contends the two cases relied upon by the Court of Special Appeals in its decision are inapposite. In Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957), rehearing denied, 355 U.S. 925, 78 S.Ct. 363, 2 L.Ed.2d 355 (1958), at the request of an extortion victim, the police used an extension phone to listen while the victim called the defendant. The Supreme Court held that, since the extension was ordinarily connected in the home of the victim and had not been installed for this specific purpose, the evidence was admissible because a telephone subscriber might reasonably be expected to allow others to listen to his conversation.

In Clark v. State, 2 Md.App. 756, 237 A.2d 768 (1968), the Court of Special Appeals relied on Rathbun in holding that the evidence was admissible where an arson victim allowed police over the course of a week to listen on a telephone extension in the victim's home to various conversations with the defendant, in one of which he confessed. Chief Judge Murphy (then Chief Judge of the Court of Special Appeals and now Chief Judge of the Court of Appeals) speaking for the Court said:

We hold only that the admissibility in evidence of the contents of a communication overheard on a regularly used telephone extension is not controlled by the provisions of the Maryland Wiretapping Act, since the Legislature never intended that the use of such an extension telephone would be considered as a means for "intercepting" or "obtaining" a telephone communication...