Johnson v. State

• Decision Date: 31 October 1967
• Docket Number: No. 325,325
• Citation: 2 Md.App. 300,234 A.2d 464
• Parties: Robert Lee JOHNSON and Hazel Beatrice Magbee v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 300

2 Md.App. 300

234 A.2d 464

Robert Lee JOHNSON and Hazel Beatrice Magbee v. STATE of Maryland.

No. 325.

Court of Special Appeals of Maryland.

Oct. 31, 1967.

Stuart E. Hirsch, Baltimore, Nelson R. Kandel, Baltimore, on brief, for appellants.

Thomas A. Garland, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, James B. Dudley, Asst. State's Atty. for Baltimore City, Baltimore, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

The appellants were convicted of violating the narcotic laws in the Criminal Court of Baltimore, before Judge James K. Cullen, presiding without a jury. Each was sentenced to imprisonment for a term of three years.

On this appeal the appellants contest the validity of the search warrant. They concede that the facts stated in the application for the warrant show probable cause but contend that those facts were illegally obtained. The facts were obtained by a police officer, inside a home with permission of the occupants, observing, with the aid of binoculars, activities occurring in a room in a house about 150 feet away. The observations were made from a window in the home in which the officer was located through an unobstructed window in the house under surveillance. The basis of the contention is that the use of the binoculars in such a manner for such a purpose violated the constitutional rights of the appellants.

The Supreme Court said in Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, at 1880, 18 L.Ed.2d 1040 (1967):

'It is now well settled that 'the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth' Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). 'The security of one's privacy against arbitrary intrusion by the police-which is the core of the Fourth Amendment-is basic to a free society'. Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). And its 'fundamental protections * * * are guaranteed * * * against invasion by the States'. Stanford v. State of Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431 (1965)'.

The attention of the courts has become directed more and more to questions involving the individual's right of privacy by the development and refinement of means of communication, although the evils of eavesdropping were early recognized. 'Eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to harken after discourse and thereupon to frame slanderous and mischievous tales, are a common nuisance'. Hochheimer, Law of Crimes and Criminal Procedure, 1st Ed., § 740, p. 452; IV Blackstone, Commentaries, § 168. The telegraph provided a better method to 'harken after discourse' by the surreptitious interception of messages. The telephone made it possible to eavesdrop by intercepting a telephone line and thus this method of 'wiretapping' became a not uncommon practice as a commercial and police technique. The problem has become more acute by the development of sophisticated electronic devices. The use of these devices, commonly known as bugging, makes it possible to eavesdrop, as the Court said in Berger, supra, 87 S.Ct. at 1877, 'on anyone in most any given situation', by devices placed within the premises monitored or by apparatus which is not necessary to place within the premises. The development and use of such devices have also caught the attention of law makers. In Maryland it is a misdemeanor for any person (except as authorized) 'to use any electronic device or other device or equipment of any type whatsoever in such manner as to overhear or record any part of the conversation or words spoken to or by any person in private conversation without the knowledge or consent, expressed or implied, of that other person'. Md.Code, (1967 Repl. Vol.) Art. 27, § 125A. Also, in this State, the interception of telephonic and telegraphic communications is prohibited (except as permitted by the Statute) and only evidence obtained by such means in confomity with the provisions of the statute is admissible in evidence, 'and then only in a prosecution for the crime or crimes specified in the court order (authorizing such interception)'. Violation of the statute is a misdemeanor. Md.Code, (1965 Repl. Vol.), Art. 35, § 92-99 inclusive. See Robert v. State, 220 Md. 159, 151 A.2d 737 and Manger v. State, 214 Md. 71, 133 A.2d 78. Up to this time, the problem of violation of privacy by visual means has not become as acute, since visual sensory aids apparently have not reached the advanced state of development of audio sensory aids. ¹ Maryland has recognized the problem, by legislative enactment, only in its most fundamental aspect and has made it a misdemeanor for any person to 'enter upon the land or premises of another for the purpose of invading the privacy of the occupants of any building or enclosure located thereon, by looking in any window, door or other aperture of such building or enclosure'. Md.Code, (1967 Repl. Vol.), Art. 27, § 580.

The first wiretap case before the Supreme Court was Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), in which it was held that the Constitution did not forbid the obtaining of evidence by wiretapping unless it involved unlawful entry into the house. ² The first bugging case before that Court was Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942). In that case, federal agents, while trespassers, installed a listening apparatus in the office of an alleged conspirator and lawfully obtained access to an adjoining office in which they planned to listen to the conversations through the apparatus. When they later attempted to use the apparatus it would not work. They had with them another device, a detectaphone having a receiver so delicate, as when placed against the partition wall, to pick up sound waves originating in the office under surveillance, and means for amplifying and hearing them. With this device they overheard conversations. The Court held that what was heard by the use of the detectaphone was not made illegal by physical trespass or unlawful entry and that the use of the device was not a violation of the Fourth Amendment. Whatever trespass was committed was connected with the installation of the listening apparatus in the office of the conspirator and the Court accepted the findings of the lower court that this trespass did not aid materially in the use of the detectaphone. In Goldman, the Court was unable to distinguish Olmstead and declined to overrule it. See also On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). In Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) the Court found that the eavesdropping there considered by it 'was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners', and thus conversations heard by that means violated the Fourth Amendment. The Court said in Silverman, 81 S.Ct. at 683:

'This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard'. (emphasis supplied)

The Court affirmed Goldman by finding no occasion to...