Poore v. State

• Decision Date: 08 March 1978
• Docket Number: No. 649,649
• Citation: 39 Md.App. 44,384 A.2d 103
• Parties: Phyllis POORE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 44

39 Md.App. 44

384 A.2d 103

Phyllis POORE v. STATE of Maryland.

No. 649.

Court of Special Appeals of Maryland.

March 8, 1978.

Henry L. Belsky, Assigned Public Defender, Baltimore, with whom was Jana R. Barnett, Baltimore, on brief, for appellant

Stephen B. Caplis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and John Denholm, Asst. State's Atty., for Baltimore City, on brief, for appellee.

THE FEDERAL WIRETAP AND ELECTRONIC EAVESDROPPING LAW AND ITS

EFFECT UPON STATE LAW.

GILBERT, Chief Judge.

Judge Orth (later Chief Judge and now an Associate Judge of the Court of Appeals), in State v. Siegel, 13 Md.App. 444, 285 A.2d 671 (1971), aff'd 266 Md. 256, 292 A.2d 86 (1972), discussed the judicial history which "cleared the way for the enactment of legislation giving sanction to the interception of wire and oral communications," 13 Md.App. at 448-49, 285 At the time of Siegel, Maryland had two (2) statutes in effect which dealt with the interception of wire or oral communications. Then Md.Ann.Code art. 35, §§ 92-99 (1956 Md.Laws ch. 116) ¹ concerned wiretapping and then Md.Ann.Code art. 27, §§ 125A-C (1959 Md.Laws ch. 706) ² and § 125D (1965 Md.Laws ch. 201) ³ relative to the interception of oral communication. ⁴

A.2d at 674, the constitutionality of the Omnibus Crime [384 A.2d 106] Control and Safe Streets Act of June 19, 1968 (Title III, 18 U.S.C. §§ 2510-2520) and the use of the federal act by the prosecutorial authorities in this State. Siegel made clear that the several States were permitted to employ the federal wiretap and eavesdropping law only if the principal prosecuting attorney was allowed by State statute to apply for an order authorizing wire or oral communication interception. If the State law empowered the principal prosecuting attorney of a political subdivision to seek such an order, "(t)he State court judge . . . (can) grant . . . (it) only in conformity with the federal act and 'with the applicable State statute.' " Id. at 459, 285 A.2d at 680.

Siegel pointed out that not every violation of the law gives rise to the use of a judicially sanctioned wire or oral communication interception but only those crimes specified in 18 U.S.C. § 2516(2) (1970) which are "murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs" and conspiracy to commit any of such crimes. Section 2516(2) was broad enough, however, to include other crimes provided that those crimes are limited to crimes "dangerous to life, limb, or property, and punishable by imprisonment for more than one year" if a State statute so allows. State v. Siegel, 13 Md.App. at 462, 285 A.2d at 682. Moreover, Siegel made crystalline Judge Digges, who authored the opinion for the Court, commented that, "(w)e live in a world which has the capability not only to monitor our conversations, to 'bug' our houses, but soon probably to delve into our innermost thoughts. To allow any of these things to occur without the strictest of controls would utterly destroy the basis of this nation's existence." Id. at 260-61, 292 A.2d at 89. In rejecting the argument that only substantial compliance with the federal act was necessary, Judge Digges responded, "(t)he statute (Title III 18 U.S.C. §§ 2510-2520) sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path." Id. at 274, 292 A.2d at 95. (Emphasis supplied.)

that the procedural aspects of 18 U.S.C. §§ 2510-2520 (1970), when viewed "in the light of its legislative history, see 2 United States Congressional and Administrative News (1968) 2191-2192, concede no exceptions." Id. at 465, 285 A.2d at 683. Because the State failed to obey the procedural safeguards of the federal act, we affirmed the dismissal by Judge Charles D. Harris in the Criminal Court of Baltimore of the Siegel indictment. The State sought and obtained certiorari by the Court of Appeals. That Court affirmed our holding. State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972).

This Court, in Calhoun v. State, 34 Md.App. 365, 367 A.2d 40 (1976), utilized the refusal of the Court of Appeals to tolerate a deviation from strict compliance with Title III, 18 U.S.C. §§ 2510-2520, no matter how slight, as "our guiding light." Because the State had not abided by the "prescribed path" of the federal act, we reversed Calhoun's conviction.

A.

The Facts of the Instant Case.

On January 16, 1976, the State's Attorney of Baltimore City made application to Judge Paul E. Dorf in the Criminal Court of Baltimore for an order "in conformity with the provisions of 18 United States Code, Sections 2510-2530 (sic ), for the issuance of a Wiretap Order." A reading of the application, however, indicates that the application really sought the Additionally, the order commanded "that no later than ninety days after the termination of the interception process authorized by this Order, or extension hereof, an inventory shall be served upon the aforementioned persons and such other parties as this Court may designate in the interest of justice." 18 U.S.C. § 2518(8)(d) (1970).

court's permission to enter secretly a hospital room in the University Hospital and to plant a particularly described transmitter or "bug" within that room. William A. Cooper, a suspected dealer in heroin, was a patient in the room where the listening device was to be secreted. The application was based on the joint affidavit of Detectives Caggese and Smoot of the Baltimore City Police Department. That the affidavit established probable cause for the issuance of the order is not challenged so that we shall not set out the nefarious acts allegedly committed by William A. Cooper and eight (8) other named companions of Cooper in the illicit drug dispensing business. Judge Dorf signed the order on the same day. It provided that the eavesdropping would be between the hours of "10:00 A.M. and 2:00 A.M.," January 17, 1976, until 2:00 A.M. on February 1, 1976. 18 U.S.C. § 2518(4)(e) (1970). The order also provided for orally advising the court of the "progress of the interception." The progress reports were to be made to the judge each Monday and Thursday during the life of the order. 18 U.S.C. § 2518(6) (1970). Upon the termination of the order, "the State's Attorney . . . or a prosecutor designated by him, and Detectives Caggese and Smoot . . . shall immediately make a Return to this Court of any and all logs and tape recordings obtained pursuant to this Order . . . ." 18 U.S.C. § 2518(8)(a) (1970).

The "bug" was installed in a fluorescent fixture directly above the bed of William A. Cooper. ⁵ All conversation occurring within the room was transmitted to and recorded by the surveillance team located on the floor above the one on which Cooper was a patient. The eavesdropping was "closed down at 4 o'clock on the 31st (of January)." The tape A second electronic intercept order was obtained on application by the State's Attorney, supported by the affidavit of Detectives Caggese and Smoot on February 17, 1976. The order permitted wiretaps to be placed upon the telephones of Anna Mae Jones at 3409 Milford Avenue, Jacqueline Gilliam, second floor of the same address, and Gerard Jones, third floor of the same address. The persons whose conversations were to be intercepted were the same as those named in the eavesdrop order of January 16, 1976.

recordings were turned over to Assistant State's Attorney F. Pond on February 1, 1976. Pond presented them to Judge Dorf on February 4, 1976. Judge Dorf apparently ordered them sealed and placed in the custody of the Clerk of the Criminal Court for safekeeping. None of the parties whose conversation was recorded by the police was notified within the prescribed period. Notice was given to them on various dates from May 24, 1976, through June 7, 1976.

Subsequently, arrests were made and the appellant, Phyllis Poore, along with Elizabeth Jennings (alias Elizabeth Harrington), Juliette Jennings, Gary Gilliam, Albert Tubman, Anna Mae Jones, Jackie Gilliam, Janie Harrington Brown, and James Garfield Gregory, ⁶ was indicted by the Grand Jury of Baltimore City for violating the Controlled Dangerous Substances laws of this State; all were convicted in the Criminal Court of Baltimore for one or more violations of those laws; all were apprehended as a result of judicially authorized eavesdropping or wiretapping; all have appealed; all assert the illegality of the State's intrusion into their illicit business; all bottom their attack on the judgments of the Criminal Court on violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

Although this appeal is concerned with Phyllis Poore, oral argument on the issues of the validity of the eavesdrop and wiretap raised by all appellants was consolidated. ⁷ Ergo, what The appellants moved to suppress the evidence obtained through the eavesdrop order, to suppress the evidence acquired as a result of the wiretap because it was tainted by the illegality of the eavesdrop and to suppress the search and seizures for the same reason.

we hold in this opinion with respect to those issues applies to each of the consolidated cases. Rather than repeat the discussion in each case, we shall merely refer to Part II of this opinion.

At the suppression hearing on the eavesdrop evidence, Assistant State's Attorney Denholm testified that he had petitioned Judge Dorf to extend the time in which the State was to notify those persons whose conversations had been electronically intercepted through the transmitter in the hospital room. Mr. Denholm told the hearing judge that Judge Dorf had signed such an order extending the time for notification to June 9, 1976, but that neither Judge Dorf nor Mr. Denholm was able to locate a copy of it. Denholm further stated that it was not placed under seal and turned over...