Davis v. State

• Decision Date: 02 June 2011
• Docket Number: No. 1233,2010.,Sept. Term,1233
• Citation: 21 A.3d 181,199 Md.App. 273
• Parties: Tyrone DAVISv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

199 Md.App. 273

21 A.3d 181

Tyrone DAVIS

v.STATE of Maryland.

No. 1233

Sept. Term

2010.

Court of Special Appeals of Maryland.

June 2, 2011.

Randy E. McDonald (McDaniel & Associates PA, on the brief) Washington, DC, for appellant.Gary E. O'Connor (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.Panel: EYLER, JAMES R., HOTTEN and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J.

Where was the interception? In football, a quarterback, standing on his own ten-yard line, may direct a pass to his wide receiver on the forty-yard line. An intervening defensive back, however, with probable cause to anticipate the pass, may leap up and pull the ball out of the air at the thirty-yard line. In the binary “either-or” world of football, the interception precludes the reception. In the multi-layered world of electronic surveillance, by contrast, the message may be received at its destination even as it is simultaneously intercepted in mid-flight. Our problem on this appeal is to pinpoint the legally significant spot at which an electro-magnetic transmission is effectively converted by the opposing team to its own use. Where, jurisdictionally, does the interception take place? At the ten-yard line, the thirty-yard line, the forty-yard line, or at all three places at once?

On the other hand, does such a question even make sense? May valid analogies be drawn between a tangible actuality such as a football and an intangible concept such as communication? Is intercepting the opposing quarterback's pass at all analogous to aiming a parabolic microphone at him to intercept his signal calling? Analogies, at the very least, will be highly strained.

Possession With Intent to Distribute

The appellant, Tyrone Davis, was found guilty in the Circuit Court for Montgomery County by Judge Terrance J. McGann, sitting without a jury, of the possession of marijuana with the intent to distribute. He was sentenced to five years imprisonment. After his pretrial motion to suppress evidence because of an alleged violation of the Maryland Wiretapping and Electronic Surveillance Act had been denied by Judge Michael J. Algeo, the appellant proceeded to trial on an agreed statement of facts, preserving his right to appeal from the denial of his suppression motion.

A Solitary Contention

The appellant's single contention is that the Montgomery County Police violated Maryland Code, Courts and Judicial Proceedings Article, § 10–408(c)(3) when they “intercepted a phone call made by the appellant in Virginia from a Virginia phone to a Virginia phone line while the call's recipient was in Virginia” and that, as a result, not only the contents of the extraterritorial interception but all derivative evidence flowing therefrom must be suppressed pursuant to § 10–405.

The Year of Decision: 1967–68

Some brief background is necessary to give context to the contention. In 1967, the United States Supreme Court, in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, gave off ominous warnings that state statutes authorizing the investigative use of either wiretapping or electronically enhanced eavesdropping, at least as most of those state statutes then stood, might fail to pass Fourth Amendment muster. The typical state statute, it was strongly suggested, would have difficulty in satisfying, inter alia, the Fourth Amendment's probable cause requirement, its particularity requirement, and its minimization requirement. The very length of the routinely authorized eavesdropping or wiretapping, the Supreme Court intimated, might turn a single warrant, in effect, into a series of open-ended general warrants. Within six months of the Berger decision, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), confirmed that the Fourth Amendment applies to the seizure of intangible conversation even without the necessity of some physical intrusion into a protected area, as Katz overruled in that regard both Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942).

Both to effectuate, completely and immediately, the protections that were the concern of Berger and Katz, but also to preserve wiretapping and electronic eavesdropping as effective law enforcement weapons, when properly constrained, Congress enacted “Title III” of the Omnibus Crime and Safe Streets Acts of 1968, now codified as 18 U.S.C., § 2510–2521. Title III is a comprehensive scheme setting out in meticulous detail the careful steps that must be taken by law enforcement officials before a judge will authorize a wiretap or the use of a “bugging” device. Title III also provided that the use of either technique by state law enforcement would be, ipso facto, illegal unless the state in question enacted its own implementing statute, fully satisfying all of Title III's requirements. The implementing state statute could be more protective of citizens' rights than Title III, but it could never be less so. Judge Digges described the new dispensation for the Court of Appeals in State v. Mayes, 284 Md. 625, 627–28, 399 A.2d 597 (1979):

[T]he Congress insured that a uniform national standard would govern the use of electronic surveillance by including within Title III's provisions standards for the use of wiretaps that the states, if they chose to allow their law enforcement officials to undertake such surveillance, must, at a minimum, comply with but which they may, if they desire, make more restrictive.

(Emphasis supplied).

Maryland Followed Suit: 1977

By ch. 692, sec. 3, of the Acts of 1977, Maryland enacted an implementing statute, now codified in Courts and Judicial Proceedings Article, §§ 10–401 through 10–414. As Chief Judge Robert Murphy noted in Mustafa v. State, 323 Md. 65, 69, 591 A.2d 481 (1991):

The Maryland Act was modeled on the federal act and closely tracks its provisions; however, the Maryland legislature has made some of the provisions of the State Act more restrictive than the federal law.

(Emphasis supplied). See also Wood v. State, 290 Md. 579, 583, 431 A.2d 93 (1981); State v. Baldwin, 289 Md. 635, 641, 426 A.2d 916 (1981); State v. Bailey, 289 Md. 143, 151, 422 A.2d 1021 (1980); Howard v. State, 51 Md.App. 46, 48–49, 442 A.2d 176 (1982); Richard P. Gilbert, “A Diagnosis, Dissection, and Prognosis of Maryland's New Wiretap and Electronic Surveillance Law,” 8 U. Balt. L.Rev. 183 (1979).

The Maryland Act followed the federal act, and with two exceptions, is essentially indistinguishable from it. Bailey, 289 Md. at 151, 422 A.2d 1021 (“The Maryland ‘Wiretapping and Electronic Surveillance’ law is an offspring of the Omnibus Crime Control and Safe Streets Act of 1968 ... commonly called Title III.”); Adams v. State, 289 Md. 221, 223, 424 A.2d 344 (1981) (the Maryland Act “tracks extensively Title III”); Mustafa, 323 Md. at 69, 591 A.2d 481; Standiford v. Standiford, 89 Md.App. 326, 333–34, 598 A.2d 495 (1991) (“The Act is an offspring of, and closely parallels, Title III of the Omnibus Crime Control and Safe Streets Act of 1968[.]”). In Fearnow v. Chesapeake & Potomac Telephone Co. of Md., 104 Md.App. 1, 32, 655 A.2d 1 (1995), rev'd on other grounds, 342 Md. 363, 676 A.2d 65 (1996), Judge Harrell wrote for this Court:

It is clear through both legislative history and case precedent that the federal wiretap statute ... served as the guiding light for the Maryland Act. Therefore, we read the acts in pari materia, so as to obtain the legislative intent of the language.

(Emphasis supplied; citations omitted).

In Adams v. State, 43 Md.App. 528, 535–36, 406 A.2d 637 (1979), aff'd, 289 Md. 221, 424 A.2d 344 (1981), Judge Chasanow pointed out the two minor respects in which the Maryland law is more restrictive than its federal counterpart. Under the federal law, an interception will be lawful if either party to a conversation consents to its being overheard and recorded. In Maryland, by contrast, such an interception is lawful only if both parties give consent. See Mustafa v. State, 323 Md. 65, 591 A.2d 481 (1991). The distinction is between one-party consent and two-party consent. The closely related second distinction is that in Maryland one-party consent, as an exception to the general Maryland rule, may be enough for the investigation of certain specially designated crimes. Under Title III, one-party consent will always be sufficient no matter what the crime. In that regard, Adams, 43 Md.App. at 537, 406 A.2d 637, observed:

Because the federal statute is identical to our own in the critical sections defining “intercept” and “electronic, mechanical, or other device” ... we may turn to the federal courts for guidance.

(Emphasis supplied). In almost every other respect, the two acts essentially track each other.

In Baldwin v. State, 45 Md.App. 378, 380, 413 A.2d 246 (1980), aff'd, 289 Md. 635, 426 A.2d 916 (1981), Chief Judge Gilbert observed:

Because the drafters of the Maryland Act so carefully tracked the federal statute ... we look to court decisions interpreting that legislation for guidance in construing the Maryland statutory language.

(Emphasis supplied).

Because of the massive similarity between Title III and its Maryland offshoot, the fact that the two statutes are not verbatim clones of each other should not be exaggerated, as the appellant seeks to do in this case. The overriding characteristic is their similarity, not their dissimilarity. Title III is an invaluable aid to the statutory interpretation of the Maryland act, and it is a disservice to suggest otherwise.

Judge Harrington's Interception Order

On September 8, 2006, Judge Ann S. Harrington in the Circuit Court for Montgomery County signed an order authorizing officers of the Montgomery County Police Department, along with officers of the United States Drug Enforcement Administration as well as officers of ...