Baldwin v. State

Decision Date15 April 1980
Docket NumberNo. 992,992
Citation413 A.2d 246,45 Md.App. 378
PartiesHugh Hartman BALDWIN, Jr. v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

William F. Sheehan, Washington, D. C., with whom were William N. Eskridge, Jr., Alfred L. Scanlan, John D. Aldock, Washington, D. C., Richard H. Sothoron, Jr., Stanley J. Klos, Jr., Upper Marlboro, and Shea & Gardner, Washington, D. C., and Shipley, Knight, Manzi & Zanecki, Upper Marlboro, on the brief, for appellant.

Thomas P. Barbera, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Sidney S. Campen, Jr., State's Atty. for Talbot County, on the brief, for appellee.

Argued before GILBERT, C. J., and WILNER and COUCH, JJ.

GILBERT, Chief Judge.

THE LAW

Judge J. Dudley Digges, writing for a unanimous Court of Appeals, declared that the Federal Wire Interception and Interception of Oral Communications sections (18 U.S.C. §§ 2510-2520 (1976)) of the Omnibus Crime Control and Safe Streets Act of 1968 "sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path." (Emphasis in original.) State v. Siegel, 266 Md. 256, 274, 292 A.2d 86, 95 (1972), aff'g 13 Md.App. 444, 285 A.2d 671 (1971).

Although the above-quoted words of Siegel have not been chiseled into granite, we have, in a series of cases, endeavored to impress on the bench and bar that the words mean precisely what they say. See e. g., Shingleton v. State, 39 Md.App. 527, 387 A.2d 1134, cert. denied, 283 Md. 738 (1978); Poore v. State, 39 Md.App. 44, 384 A.2d 103, cert. denied, 282 Md. 737 (1978); Calhoun v. State, 34 Md.App. 365, 367 A.2d 40 (1977). See also, Gilbert, "A Diagnosis, Dissection, and Prognosis of Maryland's New Wiretap and Electronic Surveillance Law," 8 U. of Balt.L.Rev. 183 (1979).

We have not deviated in the slightest from Siegel's prescribed path. Whenever a pre-interception violation or violation committed during the course of the execution of the interception order, as distinguished from post-interception violations, has occurred, we have directed that the evidence derived from the legally faulty interception be suppressed. Md.Cts. & Jud.Proc. Code Ann. (1980 Rep. Vol.) § 10-405; Carter v. State, 274 Md. 411, 337 A.2d 415 (1975) (construing the federal statute).

The Maryland Wiretapping and Electronic Surveillance Law, Md.Cts. and Jud.Proc.Code Ann. (1980 Rep. Vol.) §§ 10-401 10-412 is tailored along the lines of 18 U.S.C. §§ 2510-2520 (1976). The alterations to the federal act that were made by the General Assembly before enacting Md.Cts. and Jud.Proc.Code Ann. (1980 Rep. Vol.) §§ 10-401 through 10-412 into law were obviously designed to afford to the people of Maryland a greater protection than Congress had provided in the Omnibus Crime Control and Safe Streets Act of 1968. 1

Because the drafters of the Maryland Act so carefully tracked the federal statute, 18 U.S.C. §§ 2510-2520 (1976), we look to court decisions interpreting that legislation for guidance in construing the Maryland statutory language. 2

The Court of Appeals, in Spease v. State, 275 Md. 88, 338 A.2d 284 (1975), aff'g 21 Md.App. 269, 319 A.2d 560 (1974), upheld a conviction based on evidence obtained as a result of a wiretap notwithstanding a post-interception violation of the federal act. This Court, in Poore v. State, supra, commenting upon Spease v. State, supra, noted that there is a vast difference insofar as the sanction for non-compliance is concerned between pre-interception violations 3 and post-interception violations. 4 The reason that the courts are more tolerant of non-compliance by the State with the post-intercept provision of the law is that those sections of the code, while important to the accused, are not vital to his Fourth Amendment rights. Pre-interception violations, however, conflict with that Constitutional Amendment.

At what point does a violation cease to be one of pre-interception and become that of post-interception? Neither the Court of Appeals nor this Court has heretofore expressly decided that question. Patently, if we apply the dictionary definition to pre -interception violations, then of necessity, the violation must occur before the interception has taken place. Similarly, a post -interception violation could only occur after the interception has been made.

Strict application of the terms pre-interception and post-interception creates a hiatus between the two. What then is the effect of a violation occurring within the gap? Are such violations free of sanction? Manifestly, the answer to the latter question is a resounding NO, else the minimization requirements of both the federal act, 18 U.S.C. § 2518(5) (1976) and that of the State, Md.Cts. and Jud.Proc.Code Ann. (1980 Rep. Vol.) § 10-408(e), would be utterly meaningless. See Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); Poore v. State, supra, 39 Md.App. at 71, 384 A.2d at 119.

The tendency to sort all violations of the federal and State wiretap acts into the two categories pre - and post -interception ofttimes leads to a confusion in the terms. Just as square pegs do not fit into round holes, violations of the federal and State wiretap acts, occurring during the hiatus between pre- and post -interceptions, do not fit into either of these two classifications.

The problem may be eliminated by viewing the wiretap electronic surveillance law, like all Gaul, "divided into three parts." 5

The first part, known as the pre-intercept stage, requires, under Siegal and its progeny, strict compliance with the Md.Cts. and Jud.Proc.Code Ann. (1980 Rep.Vol.) §§ 10-401 through 10-412. The second part may be characterized as the interception or on-going phase, at which time the law enforcement agency actually conducts the electronic interception of the communication. The second phase also necessitates that there not be the slightest deviation from the letter of the act. The third part is stylistically known as the post-interception phase. It dictates what is to be done after the interception has been completed. Violation of the latter does not mandate suppression of the evidence derived from the interception, unless the party whose communication was intercepted can show that he has been prejudiced by the non-compliance with the statute. Spease v. State, supra; Poore v. State, supra. 6 Thus, aware of P.I.P. i. e., pre-interception, interception, and post-interception we turn our attention to the instant case.

THE FACTS

During the month of June 1977, Special Agent Connell J. McGeehan of the Federal Drug Enforcement Administration (FDEA) received information from the San Diego, California office of the same federal agency that "a proven reliable Confidential Informant" had advised that a "HUGH BALDWIN, who resides on the Eastern Shore of Maryland was involved in illicit drug distribution . . . between Florida, Maryland, and the District of Columbia." The information received through the informant was that Baldwin owned a glass company and a bar. Both businesses were allegedly used as a cover or front for the distribution of illegal drugs.

Earlier, in August 1976, McGeehan had received information from the Montgomery County Police that Baldwin had purchased from the North Strong Chemical Company, Inc., of Rockville, Maryland, certain chemicals that, while not in themselves proscribed dangerous substances, could be used in the manufacture of Controlled Dangerous Substances (CDS). According to the Montgomery County authorities, Baldwin placed the chemicals in the trunk of his car. Apparently, as a result of radio communication, the Baldwin vehicle was stopped by a member of the Washington, D.C. police department. A check of the operator license and registration established the identity of the person operating the vehicle as Hugh Hartman Baldwin of Chestertown, Kent County, Maryland.

The Baltimore office of the FDEA notified McGeehan in December 1976 that a Hugh Baldwin of the Atlantic Glass Company, 22 Port Street, Easton, Maryland, had ordered a five gallon container of phenyl magnesium bromide, a chemical used in the manufacture of CDS. Shortly afterwards, a surveillance of 22 Port Street was undertaken. The five gallons of phenyl magnesium bromide were delivered to the Port Street address by Special Agent Rivera of the FDEA posing, by pre-arrangement, as an employee of a common carrier. Delivery was made to Alfred B. MacKown, Jr. 7

A continued "stake-out" of the Port Street property was rewarded when Baldwin, the morning of the day after the delivery of the five gallon container, was seen carrying the container and placing it in the trunk of a 1971 Pontiac. Baldwin then drove the vehicle, followed by an agent of FDEA, to a farm house in Queen Anne's County.

On July 22, 1977, McGeehan was advised that Baldwin had purchased chemicals from North Strong Chemical consisting of thirty gallons of benzene, twelve kilograms of piperidine and eighteen kilograms of cyclohexanone, four kilograms of phenyl acetone, all of which are used in the manufacture of CDS. Additional chemicals were purchased in November and December, 1977 and February and March of 1978. The "majority of the chemicals . . . are known . . . to be utilized in the production and/or manufacturing of . . . (CDS)." 8

Detective Barbara L. King of the Anne Arundel County Police Department learned on March 13, 1978, that one Brenda Head was to receive two to four pounds of phencyclidine (PCP) 9 from a person known as "Speedy." Alfred MacKown was later determined to be "Speedy." Because "Speedy" believed he was being followed the delivery was aborted. Subsequently, on March 16, Head met King and a confidential informant at the Oxbow Inn, which is located on Ritchie Highway. Head entered the vehicle occupied by King and sold King a quarter pound of PCP for $425. Head had at the time another one pound bag of PCP. The price for three-quarters of a pound...

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