Davis v. State

Decision Date02 May 2012
Docket NumberNo. 59,Sept. Term, 2011.,59
Citation426 Md. 211,43 A.3d 1044
PartiesTyrone DAVIS v. STATE of Maryland.
CourtMaryland Court of Appeals

OPINION TEXT STARTS HERE

Randy Evan McDonald (McDaniel & Associates, P.A., Washington, D.C.), on brief, for petitioner.

Adrienne J. Lawrence (McGuireWoods LLP, Washington, D.C.), on brief, for petitioner.

Gary E. O'Connor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.

HARRELL, J.

Montgomery County law enforcement officers, situated at a “ listening post” in Montgomery County, Maryland, and operating under an ex parte order issued by a judge of the Circuit Court for Montgomery County properly under the Maryland Wiretapping and Electronic Surveillance Act, intercepted a mobile phone communication from a target mobile phone, caller, and receiver located in Virginia. Section 10–408(c) of the Maryland Code, Courts and Judicial Proceedings Article, permits a Maryland judge to enter an ex parte order authorizing the interception of “wire, oral, or electronic communications ... sent by a communication device anywhere within the State.” As a result of the intercepted communication, the police seized from Petitioner, Tyrone Davis (the caller), controlled dangerous substances when he returned to his Maryland residence. Petitioner moved in the Circuit Court to suppress all evidence obtained by police through the asserted illegal search and seizure, on the basis that the wiretap order did not authorize interception of the extraterritorial communication and the court issuing the order could not authorize such an interception. The hearing judge denied the motion, citing federal case law defining the location of an “interception” as where the mobile communication was first intercepted or redirected and where it was first heard by law enforcement officers. On appeal, the Court of Special Appeals affirmed the denial of the motion.

Although, in a few aspects, Maryland's wiretapping statute is more protective of individual privacy rights than Title III of the Federal Omnibus Crime and Safe Streets Act of 1968 (Title III), generally the Maryland statute is an “offspring” of Title III. We have read analogous provisions in our statute to be in pari materia with Title III, as interpreted by federal courts. Because the Title III and Maryland wiretap statute definitions of “interception” are verbatim, we shall adopt here the federal gloss in determining the proper jurisdiction and scope for an ex parte wiretap order. Thus, as long as the “listening post” where the law enforcement officers first hear the intercepted communications is within the geographical jurisdiction of the court issuing the order, the interception is proper under the Maryland statute. Accordingly, we conclude that the motion to suppress evidence was denied properly by the Circuit Court for Montgomery County and, therefore, affirm the judgment of the Court of Special Appeals.

I. Factual and Legal Proceedings

The following was gleaned from the record of the suppression hearing. On 8 September 2006, the State's Attorney for Montgomery County filed an ex parte application to intercept and record wire, oral, and electronic communications from Petitioner's mobile cell phone. Petitioner lived in Silver Spring, Montgomery County, Maryland. The application was supported by affidavits from a Montgomery County Police Department Detective and a Special Agent for the United States Drug Enforcement Agency, who were coordinating an ongoing investigation into the distribution of controlled dangerous substances within Montgomery County. Petitioner was one of the targets of the investigation. The affidavits contained evidence, gathered pursuant to wiretaps approved previously, evincing probable cause to believe that Davis was transporting controlled dangerous substances into Maryland from outside the state. On the day the wiretap application pertinent to the present case was filed, Judge Ann Harrington of the Circuit Court issued an order approving the application. The order, on its face, allowed investigators to intercept Davis's mobile phone communications 1 and required T–Mobile (operator of the relevant mobile phone infrastructure) to provide position and caller identification information, without geographic limit.

On 11 September 2006, Montgomery County police (stationed at a covert location in Montgomery County) were monitoring the communications on Davis's mobile phone and overheard a call that, based on the officers' training and experience, indicated that Davis was approaching the Washington, D.C., area after a journey to Miami, Florida, and potentially transporting controlled dangerous substances into Maryland. Approximately one hour after the call was intercepted,two officers confronted Davis as he arrived at his residence in Montgomery County. The officers concocted a cover story, which they told Davis, that they believed that he matched the description of a suspect in a recently committed robbery and requested to search Davis, his vehicle, and a suitcase in the trunk of his car. During the search, the officers found over nine pounds of marijuana in the suitcase.2 The officers did not arrest Davis at that time, purportedly to avoid disrupting the ongoing drug investigation.

On 22 October 2009, a grand jury indicted Davis for possessing marijuana on 11 September 2006, “in sufficient quantity to indicate reasonably under all circumstance an intent to distribute the controlled substance,” in violation of Maryland Code (1957, 2002 Repl.Vol.), Criminal Law Article, § 5–602(2). Petitioner filed a pre-trial, omnibus motion, which included a request to suppress evidence obtained through an illegal search and seizure under Maryland Rule 2–252. Judge Michael Algeo of the Circuit Court presided over the suppression motion hearing on 8 April 2010.

At the hearing, Petitioner's trial counsel argued that the police violated Maryland Code (1957, 2006 Repl.Vol.) Courts & Judicial Proceedings Article, § 10–408(c)(3), by intercepting a call made from Davis's cell phone, registered to a Virginia address, to a recipient located in Virginia, while Davis also was in Virginia when the call was placed and during the entire communication. Judge Algeo reasoned that the definition of “intercept” was the same under the Maryland wiretap statute and Title III and that the federal court's interpretation of “intercept” in United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir.1992), that “the interception must also be considered to occur at the place where the redirected contents are first heard,” should apply in pari materia to interpretation of the parallel Maryland statute. Judge Algeo concluded that Davis's call was “intercepted” lawfully in Montgomery County, where the investigators first heard the mobile phone conversation and, therefore, denied Petitioner's motion to suppress the evidence seized by the police. At trial, Davis was convicted of violating Criminal Law Article, § 5–602(2) and sentenced to five years in prison.

Davis noted timely an appeal to the Court of Special Appeals. A panel of the intermediate appellate court, in Davis v. State, 199 Md.App. 273, 21 A.3d 181 (2011), affirmed. The intermediate appellate court concluded that the location of the mobile phone, the caller, or the recipient of the call were not material. The critical location in the analysis was where the “interception” occurred. Davis, 199 Md.App. at 287, 21 A.3d at 189. The panel held that

interception ... may be at either or both of two places: 1) where the suspect phone which is the subject of the interception order is located, regardless of whether that phone is sending a message or receiving a message; and 2) where the police are located as the monitor and hear the intercepted message, to wit, the location of the “listening post.” Id.

Because the Montgomery County police's “listening post” was located within Montgomery County, Maryland, the intermediate appellate court concluded that the interception of the communication from Davis's mobile phone, although associated physically with Virginia, was lawful. Davis, 199 Md.App. at 304, 21 A.3d at 199. Davis filed timely a petition for writ of certiorari, which we granted, Davis v. State, 421 Md. 557, 28 A.3d 644 (2011), to consider the question:

Did the Court of Special Appeals err in affirming the trial court's decision denying Mr. Davis's motion to suppress derivative evidence seized by Montgomery County police after the police intercepted Mr. Davis's phone call from his Virginia phone, placed while he was in Virginia, to a Virginia phone line when the call's recipient was also in Virginia, in violation of the Maryland Wiretapping and Electronic Surveillance Act, Md.Code Ann. Cts. & Jud. Proc. § 10–401, et seq.?

As foretold earlier in this opinion, we conclude that interception of a wire, oral, or electronic communication, for the purposes of the Maryland wiretap statute, occurs where law enforcement officers capture or redirect first the contents of the communication overheard by the wiretap and where they heard originally the communication. Therefore, as long as the “listening post” was located within the territorial jurisdiction of the court issuing the ex parte wiretap order, neither the physical location of the mobile phone at the time the call was placed and during the communication or the recipient of the call are material. Accordingly, we affirm the judgment of the Court of Special Appeals that the Circuit Court for Montgomery County denied properly Petitioner's motion to suppress.

II. Standard of Review

When interpreting a statute, a court's goal is “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied....” Ray v. State, 410 Md. 384, 404, 978 A.2d 736, 747 (2009) (quoting Barbre v. Pope, 402 Md. 157, 172, 935...

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