Allen v. State

• Decision Date: 01 September 1990
• Docket Number: No. 1649,1649
• Citation: 597 A.2d 489,89 Md.App. 25
• Parties: Peter Lenox ALLEN and David Alexander Allen v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 25

89 Md.App. 25

597 A.2d 489

Peter Lenox ALLEN and David Alexander Allen v. STATE of Maryland.

No. 1649, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Oct. 30, 1991.

Certiorari Denied Feb. 12, 1992.

Kathleen M. Brown, Assigned Public Defender (Stephen Harris, Public Defender, Baltimore, on the brief), for appellant, Peter L. Allen.

Robert J. Morrissey (Morrissey, Morrissey & Morrissey, P.C., on the brief), Bowie, for appellant, David A. Allen.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Submitted before CATHELL, DAVIS and MOTZ, JJ.

MOTZ, Judge.

During 1989, the Prince George's County Police Department conducted a comprehensive investigation of appellants, Peter Lenox Allen (Peter) and David Alexander Allen (David), and others who were alleged to run a criminal enterprise for the purpose of the sale of cocaine. The investigation culminated in the Allen brothers being indicted for various narcotics-related crimes. After several days of hearings, appellants' motions to suppress were denied. Appellants were then tried by a jury in the Circuit Court for Prince George's County (Johnson, J.) and convicted of all charges.

Peter was sentenced to a term of 30 years imprisonment without parole, ten years suspended, and a fine of $30,000, $10,000 suspended, for being a drug "kingpin"; a concurrent 20-year term of imprisonment for importation of cocaine; a concurrent 20-year term of imprisonment for use of a minor in drug distribution; and a consecutive term of ten years, without parole, five years suspended, for possession with intent to distribute in a large quantity. David was sentenced to a term of 20 years imprisonment, ten years suspended, for conspiracy to import; and a concurrent 20-year term, ten years suspended, for conspiracy to distribute.

On appeal, reversal is urged on five grounds. Both brothers assert:

1. The trial court improperly denied their motions to suppress evidence derived from wiretap interceptions.

2. The verdict against them was tainted by improper communications with the jury.

In addition, Peter claims:

3. There was insufficient evidence to support his conviction under the drug "kingpin" statute.

4. The trial court erred in holding his protestations of innocence against him at sentencing.

Finally, David claims:

5. The trial court erred in imposing separate sentences for his two conspiracy convictions.

Facts relevant to each issue are set forth as necessary below.

I. Suppression of Evidence

In the spring of 1989, a confidential informant and casual police observation suggested to officials in the Prince George's County police department that Peter Allen might be involved in the distribution of narcotics. In early July, 1989, the department began a full-scale investigation into Peter Allen's activities, including surveillance of his home. Among the vehicles that investigators observed parked in front of the house on various occasions was a car belonging to David Allen, Peter's brother. It soon became apparent to investigators that David lived with Peter. Over the ensuing weeks, detectives continued their surveillance of both Peter and David, frequently following them and watching for drug-related activity.

Investigators also began a series of "trash rips," i.e., recovery and analysis of the trash placed on the curb in front of Peter Allen's house. Among the items recovered from the trash, which corroborated growing suspicion that the brothers were involved in narcotics distribution, were trace amounts of cocaine from discarded plastic bags, wrappers useful for packaging large amounts of money, ammunition, assorted bank statements and records, and other materials. In addition, detectives employed dialed number recorders ("DNRs") on Peter Allen's home telephone, tracking the numbers and locations of telephones which were in communication with that telephone. The police then conducted background checks of the telephone numbers and persons who called Peter Allen's house.

In October, 1989, the police applied for an ex parte court order authorizing electronic surveillance of Peter Allen's home telephone and car telephone. In two affidavits, each over one-hundred pages in length, investigators detailed the nature of their probe and their objectives for placement of the wiretap on the telephones. The objectives of the electronic surveillance, according to the affidavits, were to determine the dates, times and places of drug importation into and distribution throughout Maryland; the locations of drugs stashed for future distribution; the prices charged and paid by conspirators; the use of monies emerging from the drug transactions; and the identities of persons previously unknown who dealt drugs with Peter Allen and with other known suspects.

On October 25, the circuit court granted the state's request for wiretaps on both of Peter Allen's telephones. The court directed that the electronic surveillance be terminated by November 24, or upon achievement of the state's objectives, whichever shall occur first. On October 30, the court extended the order to incorporate the monitoring of conversations dealing with homicides and robberies. The wiretaps terminated on Friday, November 10, 1989, when both brothers, as well as several other alleged co-conspirators, were arrested. On Monday, November 13, in the presence of the circuit court, the investigators placed the tapes generated from the surveillance into a sealed box, pursuant to Md.Cts. & Jud.Proc.Code Ann. § 10-408(g) (1984 Repl.Vol., 1991 Supp.). The next day, again in the presence of the circuit court, they opened the box for the purposes of adding written monitor logs; the box was then resealed and retained by the court.

At a hearing on the motion to dismiss on March 27, 1990 the prosecutor unsealed the box. It became immediately apparent that, contrary to the mandate of § 10-408, the petition, affidavits and order for the wiretap were not included in the box. After a search for the missing documents, it was discovered that the judge who issued the ex parte electronic surveillance order had inadvertently left them on a shelf in his office. Called to testify at the motions hearing, that judge stated that he placed the materials on his shelf immediately after they were signed by the detectives in November and they remained there, within nine inches of his chair, until that morning. After removing dust which had accumulated on the materials and reading them for possible tampering, the judge testified that "there have been no changes, no alterations, no modifications at all" to the material. The defendants' motion to suppress the tapes was then denied.

On appeal, appellants claim that admission of the tapes was contrary to Maryland's wiretap statute, Md.Cts. & Jud.Proc.Code Ann., §§ 10-401 to 10-412 (1984 Repl.Vol., 1991 Supp.). The Maryland statute is an offspring of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, tit. III, § 802, codified at 18 U.S.C. §§ 2510-2520 (commonly referred to as "Title III"). The statutory provisions in both the state and federal statutes that require a wiretap order to conform to specific minimum guidelines are those that are perceived to contain minimum safeguards to constitutional rights. State v. Bailey, 289 Md. 143, 154, 422 A.2d 1021 (1980). ¹

Almost universally, other states that have based their own wiretapping statutes on Title III permit introduction into evidence of information acquired through electronic surveillance, if there is substantial compliance with the statute and no prejudice is shown. See Howard v. State, 51 Md.App. 46, 60, 442 A.2d 176 (1982). Maryland, however, distinguishes between the statutory conditions that apply before or during the interception (preconditions) and those that apply after the termination of the interception (postconditions). Id., 51 Md.App. at 61, 442 A.2d 176; see also State v. Bailey, 289 Md. at 154, 422 A.2d 1021. A defect in the State's adherence to postconditions will not vitiate the order if there has been substantial compliance and no prejudice to the defendant shown; on the other hand, a defect with respect to preconditions will void the order and cause suppression of the evidence. Poore v. State, 39 Md.App. 44, 53-54, 384 A.2d 103 (1978); see also Howard v. State, 51 Md.App. at 61, 442 A.2d 176. ² Appellants make two precondition challenges and two postcondition challenges.

1. The Exhaustion Requirement

First, appellants claim that, prior to obtaining the wiretap order, the State failed to demonstrate that alternative investigative techniques had been exhausted or would have been futile. An application for an order authorizing the interception of electronic communications must contain "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Md.Cts. & Jud.Proc.Code Ann. § 10-408(a)(3). See also Vandegrift v. State, 82 Md.App. 617, 626-27, 573 A.2d 56, cert. denied, 320 Md. 801, 580 A.2d 219 (1990). The underlying purpose of this precondition is to guard against the use of electronic surveillance as an initial investigative tool. Vandegrift, 82 Md.App. at 627, 573 A.2d 56; Bell v. State, 48 Md.App. 669, 674-75, 429 A.2d 300, cert. denied., 291 Md. 771 (1981). Here, appellants are not arguing that the State's preliminary investigation was insufficient to warrant the issuing of an electronic surveillance order. Rather, they assert that the State's investigation was so exhaustive as to negate any further need to wiretap the suspects. Appellants point to the DNRs, trash rips, surveillance and use of confidential sources as being "successful in obtaining a great deal of information both about parties...