Ricks v. State

• Decision Date: 01 September 1987
• Docket Number: No. 55,55
• Citation: 312 Md. 11,537 A.2d 612
• Parties: , 56 USLW 2539 James A. RICKS, Kevin R. DeShields and Van Allen Lewis v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 11

312 Md. 11

537 A.2d 612, 56 USLW 2539

James A. RICKS, Kevin R. DeShields and Van Allen Lewis v. STATE of Maryland.

No. 55, Sept. Term, 1987.

Court of Appeals of Maryland.

March 4, 1988.

Jose Felipe Anderson, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief) Baltimore, for appellants.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

MURPHY, Chief Judge.

This case involves a challenge to the legality of a court order authorizing non-consensual video surveillance by police of suspected illegal drug activities within a residential apartment in Baltimore City. The central issue is whether this type of surveillance is permissible in view of the Maryland Wiretap and Electronic Surveillance Act (the Maryland Act), Maryland Code (1984), § 10-401 to 10-413 of the Courts and Judicial Proceedings Article and, if so, whether the surveillance in this case was violative of the Fourth Amendment's provisions against unlawful searches and seizures. A further threshold issue is also presented; it pertains to standing to raise the Fourth Amendment question in the circumstances of this case.

I

In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521 (1970, 1987 Cum.Supp.) (the Federal Act). It did so in the wake of the Supreme Court's decisions in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), both of which recognized that constitutional strictures existed on both the state and national governments' right to conduct electronic surveillance. State v. Mayes, 284 Md. 625, 627, 399 A.2d 597 (1979).

The purpose of the Federal Act was 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); Mayes, supra.; State v. Maddox, 69 Md.App. 296, 517 A.2d 370 (1986). The Federal Act, therefore, prohibited the interception and use of oral and wire communications unless obtained in strict conformity with the Act's provisions, which prescribed a uniform minimum national standard governing the interception and use of such communications in connection with a number of designated criminal offenses. ¹ The Federal Act permits state law enforcement officers, if authorized by state statute adopting these national standards, to intercept wire and oral communications, provided that the state law is not more lenient than the Federal Act (although it could be more restrictive). State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972).

The Federal Act mandates strict judicial supervision and approval at all stages of the authorized surveillance. ² Section 2516 inhibits any non-consensual interceptions without first obtaining a court order; an application in support of a request for surveillance must first be approved by designated law enforcement officials and contain a sworn statement of facts justifying interception of wire or oral communications. Under § 2518(1)(b)(i) through (iv) the application for the court order must specify the particular offense under investigation; the nature and location of the targeted interception; the type of communication to be intercepted; and the identity of the targeted individuals. Provisions in § 2518 require that the application state whether traditional investigative procedures have been tried; the requested duration; whether the interception should continue after the desired communication is initially intercepted; and whether previous requests had been made. Other provisions of § 2518 authorize a judge, by ex parte order, to authorize the surveillance upon a determination that sufficient probable cause exists that (1) a particular offense covered by the Act was or will be committed; (2) the surveillance will intercept communications pertaining to the specified offense; (3) the illegal activities are being conducted at the described location; and (4) that traditional investigative methods have been tried and failed, are likely to fail, or are too dangerous to attempt.

Once authorized by court order, the Federal Act requires that law enforcement officers take strict precautionary measures insuring that only communications related to the specified offenses are intercepted ("minimization"), § 2518(5); that all documents be sealed, § 2518(8)(a) and (b); and within a specified time period after termination of the surveillance the parties whose communications were intercepted must be advised ("Inventory Notice"), § 2518(8)(d). A violation of any of these requirements may mandate the suppression of the seized evidence, § 2518(10). See generally Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland's New Wiretap and Electronic Surveillance Law, 8(2) U.Balt.L.Rev. 183 (1979).

II

In 1977, pursuant to the provisions of Title III, Maryland adopted its present Wiretap and Electronic Surveillance Act (the Maryland Act); it was modeled upon and closely tracked the provisions of the Federal Act, although in some particulars it was more restrictive than the Federal Act. Wood v. State, 290 Md. 579, 431 A.2d 93 (1981); State v. Baldwin, 289 Md. 635, 426 A.2d 916 (1981); State v. Bailey, 289 Md. 143, 422 A.2d 1021 (1980); State v. Siegel, supra; Benford v. ABC, 554 F.Supp. 145 (D.Md.1982). The Maryland Act, like the Federal Act, did not mention video surveillance; both acts governed the interception of wire and oral communications. As authorized by the Federal Act, §§ 10-406 and 10-408 of the Maryland Act permit designated state law enforcement officers, upon the requisite probable cause showing, to apply to a circuit court judge for an order authorizing the interception of wire and oral communications for the purpose of providing evidence of certain designated criminal offenses including, "dealing in controlled dangerous substances." ³

III

On June 8, 1984, officers of the Baltimore City Police Department and Federal Drug Enforcement Agency applied to Judge Milton Allen, a circuit court judge, for an order authorizing simultaneous audio and video surveillance of an apartment in Baltimore City, leased by one Laverne Pickney. In an 84-page sworn application for the order, the affiants, four in number, indicated that their investigation was directed at high echelon individuals associated with a major, multi-dimensional illegal narcotics distribution organization. The subject apartment, according to affiants, was the "cut house" used to process and distribute the illegal drugs. Based on earlier authorized wiretap interceptions of two other "base stations" utilized by the criminal enterprise, the subject apartment was known among the organization's members as "the hill." The application outlined in great detail the genesis and virtually day-to-day progress of the investigation; that the wiretaps had intercepted cryptic and often coded conversations between members of the organization but known by the investigating officers to relate to illegal drug activity; and that the subject apartment was a location regularly frequented, usually in the late night hours, by the organization's members to further their illegal drug activity and, in particular, to dilute, package, and distribute the controlled dangerous substances. Notwithstanding the extensive and lengthy investigation by the affiants, which utilized or considered utilizing all manner and means of conventional and innovative techniques, ⁴ the application recited that the police were unable to determine the organization's method of interstate supply and the location of other places where the illegal drugs were stored before distribution. The application explained that the organization's members were so disciplined in their speech as possibly to result in failure of interception of oral communications by audio devices; and that authority was therefore necessary to install a video tape camera within the apartment to observe the various aspects of the illegal enterprise. The application recited that a single surreptitious entry to install both electronic devices was essential to avoid detection and to minimize the danger to those authorized to enter the apartment to install the video camera and bugging device.

According to the affiants, additional evidence was needed to demonstrate sufficient probable cause to arrest the high echelon members of the organization, who were the primary targets of their surveillance. Further in the application, the affiants related that an authorized search of the apartment would not reveal the source or method of the organization's drugs and distribution, nor would it reveal sufficient information to destroy the organization; moreover, an authorized search of the subject apartment at that time would make it impossible to locate other of the organization's stash houses.

In their application, the affiants stated that the lessee of the apartment, Laverne Pickney, did not reside there; that she resided at another named address where her automobile was registered; and neither she nor her motor vehicle was ever observed at or near the subject apartment. The gas and electric and telephone services were listed in Pickney's name, but the telephone was disconnected.

Finding that the application conformed to all requirements of the Maryland and Federal Acts, as well as with the Fourth Amendment, Judge Allen issued an order authorizing surreptitious entry into the subject apartment to simultaneously install an audio listening device (a "bug") to intercept oral communications and, for purposes of video surveillance, a small camera embedded into the ceiling of the apartment to record the illegal activities. ⁵ In a 22-page order, Judge Allen concluded that there was probable cause to believe...