Mustafa v. State

• Decision Date: 01 September 1990
• Docket Number: No. 114,114
• Citation: 591 A.2d 481,323 Md. 65
• Parties: Mohammed MUSTAFA and Andarge Asfaw v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 65

323 Md. 65

591 A.2d 481

Mohammed MUSTAFA and Andarge Asfaw v. STATE of Maryland.

No. 114, Sept. Term, 1990.

Court of Appeals of Maryland.

June 25, 1991.

Alan J. Goldstein (Leonard Russell Stamm, Greenbelt, Joseph F. Vallario, Jr., Steven G. Chappelle, Suitland, all on brief), for appellants.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ., CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned, and LLOYD L. SIMPKINS, Judge of the First Judicial Circuit of Maryland (retired), Specially Assigned.

MURPHY, Chief Judge.

This case has been certified to us by the Court of Special Appeals pursuant to Maryland Rule 8-304(a). ¹ The single question presented is whether the Maryland Wiretap and Electronic Surveillance Act, Maryland Code (1989 Repl.Vol.), §§ 10-401 through 10-414 of the Courts and Judicial Proceedings Article (the Maryland Act), "precludes the admission in evidence in a Maryland court of the contents of an electronically recorded telephone conversation between a person in the District of Columbia and a person in Maryland if (1) the recording was made by the person in the District of Columbia without the knowledge and consent of the other person and without the authorization required by § 10-408 [of the Courts Article] but (2) the making of the recording was permissible under the law of the District of Columbia." ²

I.

The relevant facts, as set forth in the certification order, are as follows:

"In April, 1989, Corporal John Bartlett of the Prince George's County Police was introduced by an FBI agent to Peter Dilliner, a paid informant who lives in the District of Columbia. Bartlett wanted to arrange a drug transaction in his jurisdiction. For a fee of $2,500, Dilliner agreed to have a drug dealer set up a buy of two kilograms of cocaine in Prince George's County. Dilliner was acquainted with appellant Asfaw, and enlisted Asfaw's help in obtaining the cocaine without disclosing the police involvement.

"Dilliner engaged in several telephone conversations with Asfaw and a person known to Dilliner as 'Maurice,' believed by Dilliner to be the appellant Mustafa. From his home in the District of Columbia, Dilliner telephoned Asfaw 'ten or twelve times' at Asfaw's business address in Maryland. He also received calls at his home from Asfaw and Maurice. Dilliner said he did not know where the incoming calls from either defendant originated but, according to Bartlett, all of the telephone conversations were between D.C. and Prince George's County. Using his own tape recorder attached to his telephone in the District of Columbia, Dilliner recorded all of his telephone conversations with Asfaw and Maurice.

"Dilliner acknowledged that he recorded the conversations without authorization from or knowledge of the recording by Officer Bartlett. He said he advised Bartlett two days after he discussed the cocaine purchase with Asfaw that he was taping the telephone calls, but Bartlett claimed that he did not learn of the taping until after the arrest of the various participants. In either event, the initial taping was not authorized by the police. Nevertheless, Dilliner gave the tape to Corporal Bartlett, and its existence was disclosed to appellants as a result of their requests for discovery.

"Both Mustafa and Asfaw filed pre-trial motions to suppress the recorded telephone conversations. Those motions were denied, and at the ensuing jury trial [in the Circuit Court for Prince George's County] the recordings were admitted into evidence over objection."

Mustafa was convicted of possession of cocaine with intent to distribute, possession of cocaine, and conspiracy to distribute cocaine. The conviction for possession of cocaine was merged into the conviction for possession with intent to distribute. Asfaw was convicted of conspiracy to distribute cocaine. After sentences were imposed, Mustafa and Asfaw appealed to the Court of Special Appeals.

II.

Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521 (1979, 1990 Cum.Supp.) provides uniform minimum standards governing the interception and use of oral, wire, and electronic communications in connection with the prosecution of certain criminal offenses. The federal act seeks to protect the privacy of the individual while at the same time aiding in the enforcement of the criminal laws. United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974); Ricks v. State, 312 Md. 11, 13, 537 A.2d 612, cert. denied, 488 U.S. 832, 109 S.Ct. 90, 102 L.Ed.2d 66 (1988). Title III requires an effectuating state law before it can be applied within the state. State v. Siegel, 266 Md. 256, 271-72, 292 A.2d 86 (1972). The state law may not be less but may be more restrictive than the federal law. 18 U.S.C. § 2516(2); Ricks, supra, 312 Md. at 14, 537 A.2d 612. 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. See Wood v. State, 290 Md. 579, 583, 431 A.2d 93 (1981); State v. Baldwin, 289 Md. 635, 641, 426 A.2d 916, cert. denied, 454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 144 (1981); State v. Bailey, 289 Md. 143, 151, 422 A.2d 1021 (1980); A Diagnosis, Dissection, and Prognosis of Maryland's New Wiretap and Electronic Surveillance Law, 8 U.Balt.L.Rev. 183, 191 n. 45 (1979).

Subject to other provisions of the Maryland Act, § 10-402(a)(1), (2) and (3), respectively, make it unlawful for any person to willfully intercept, disclose, or use any wire, oral, or electronic communication. Section 10-402(c)(2) provides that it is lawful for an investigative or law enforcement officer acting in a criminal investigation, or any person acting under the prior direction of that officer, to intercept such communications in order to provide evidence of the commission of a number of specifically enumerated criminal offenses, including trafficking in controlled dangerous substances. ³ This provision requires that the person intercepting the communication be a party "to the communication or [that] one of the parties to the communication has given prior consent to the interception." Thus, where a police informant, as in this case, does not act under the prior direction of an investigative or law enforcement officer when intercepting a communication, the provisions of § 10-402(c)(2) do not legalize the disclosure of that communication in a Maryland court.

Maryland's two-party consent provision, a departure from the federal act, is contained in § 10-402(c)(3); it makes it unlawful, with other exceptions not here pertinent, for a "person" to intercept a wire, oral, or electronic communication unless the person "is a party to the communication and where all of the parties to the communication have given prior consent to the interception." ⁴

Section 10-405 provides, as to an intercepted communication, that "no part of the contents of the communication and no evidence derived therefrom may be received in evidence in any trial ... if the disclosure of that information would be in violation of [the Act]." Section 10-407 contains a number of provisions, none of which are apposite to the facts in the present case, authorizing disclosure of the contents of communications intercepted in accordance with the provisions of the Maryland Act, or of evidence derived therefrom. Specifically, § 10-407(c) permits such disclosure by a person in a Maryland court if the communication was intercepted "by any means authorized by this subtitle." Section 10-407(f) provides:

"Any investigative or law enforcement officer [of another state] ... who has lawfully received any information concerning wire, oral or electronic communication or evidence lawfully derived therefrom, which would have been lawful for a law enforcement officer of this State pursuant to § 10-402(c)(2) ... to receive, may disclose the contents of that communication or the derivative evidence while giving testimony [in court]."

Under the federal law, a wire or oral communication may be intercepted by a person acting under color of law if the person is a party to the communication, or if one of the parties to the communication has given prior consent to the interception. 18 U.S.C. § 2511(2)(c). Even a party not acting under color of law may intercept a wire or oral communication if a party to the communication or if one of the parties to the communication has given consent, as long as the purpose of the interception is not in violation of state or federal law. § 2511(2)(d). The Maryland Act, on the other hand, specifies that except in connection with the offenses enumerated in § 10-402(c)(2) (which include trafficking in controlled dangerous substances), oral, wire, or electronic communications may be intercepted only if the interceptor is a party to the communication and all of the parties to the communication have given prior consent to the interception, and the interception is for a lawful purpose. As earlier observed, Dilliner was not acting at the direction of an investigative or law enforcement officer when he intercepted the communications in this case; hence, two-party consent was required before the intercepted communications were admissible in a Maryland court.

III.

The parties agree that Dilliner's use of a tape recorder attached to his telephone in the District of Columbia to intercept the communications here involved was lawful under 18 U.S.C. § 2511(2)(c) and (d). They also agree that the interception would not have been lawful had it been made in Maryland.

Appellants contend that the admission of Dilliner's tape recordings in evidence was improper because § 10-407(c) permits the disclosure of intercepted information only if it is derived "in accordance with the provisions of...