Smith v. State

Citation283 Md. 156,389 A.2d 858
Decision Date14 July 1978
Docket NumberNo. 98,98
PartiesMichael Lee SMITH v. STATE of Maryland.
CourtCourt of Appeals of Maryland

Howard L. Cardin, Baltimore, for appellant.

Stephen B. Caplis, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., and Mary Ann Willin, Asst. State's Atty., Baltimore, on the brief), for appellee.

Argued Dec. 8, 1977 before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

Reargued March 6, 1978 before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

MURPHY, Chief Judge.

Whether electronically obtained evidence was improperly admitted at the appellant Smith's criminal trial in violation of state law and the federal constitution is the central issue in this case.

Smith was charged with having robbed Patricia McDonough on March 5, 1976. Evidence adduced at the trial showed that the victim was returning to her home shortly after midnight on the morning of the crime when she observed a man in her neighborhood changing a tire on a 1975 Monte Carlo automobile which had a dark green bottom and a tan top. As Miss McDonough approached her home, she was suddenly grabbed from behind and her pocketbook forcibly taken from her. In the course of the robbery, the victim had a full-face view of the robber and promptly gave Officer Kenneth Lucas a description of her assailant and of the 1975 Monte Carlo automobile.

Shortly after the crime was committed, Miss McDonough received a threatening and obscene telephone call from an individual who identified himself as the person who had robbed her. She thereafter received a series of such calls from the robber and so advised the police. Unknown to the police, a friend of Miss McDonough, Walt Heline, had attached a recording device to her telephone and instructed her how to tape the robber's conversation when he called. After Miss McDonough taped three or four calls from her assailant, she informed the police that she had recorded the conversations, and eventually gave the tapes to them.

In the meantime, on March 13, at the request of the police, the telephone company, at its central office, installed terminating accounting equipment on the victim's telephone line in an effort to determine the origin of the calls she was receiving from the robber. As a result, it was ascertained that some of the calls were being made from pay phones in the immediate vicinity of the victim's home. Earlier, the victim had advised the police that she thought one of the calls had been made from a telephone at a private residence.

On March 15, Miss McDonough received a call from the robber requesting that she step out on her porch so that he could see her. She did so and observed the 1975 Monte Carlo which she had earlier described to the police, driving slowly by her home.

Officer Lucas, to whom the victim had originally reported the crime, was on the lookout for a man fitting the description of the robber and of the described vehicle. On March 16, in the general vicinity of the victim's home, the appellant Smith stopped Lucas and sought his assistance in opening the locked door of his 1975 Monte Carlo. Lucas took the license number of the vehicle, learned that it was registered to the appellant Smith, and so notified other investigating police officers.

On March 17, the telephone company, at the request of the police, installed a pen register 1 at its central offices to record the phone numbers of calls made from the telephone at Smith's residence. On March 17, a call was made from Smith's residence to the victim's home. The police thereafter obtained a search warrant to search Smith's automobile and residence. The search of the residence revealed that a page in Smith's telephone book was turned down; it contained the name and number of the victim. On March 19, the victim viewed a six-man line-up at police headquarters and identified the appellant Smith as the man who robbed her.

In pretrial motions, Smith had sought to suppress the evidence obtained by the tape recordings and the pen register; he also moved to suppress the line-up identification. He contended that the attachment of the recording device to the victim's telephone without a court order violated Maryland Code (1957, 1976 Repl.Vol.) Art. 27, § 125A(a); under that section, it is a misdemeanor "for any person in this State to use any electronic device . . . 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 . . . of that other person." He also contended that the recording device attached to the victim's phone violated Code (1974), § 10-402 of the Courts and Judicial Proceedings Article; that section prohibits a person from obtaining "the whole or any part of a telephonic . . . communication to which the person is not a participant by means of a device . . . unless consent is given by the participants." Appellant further contended that the evidence resulting from the installation of the pen register should be suppressed because its obtention was based on information gleaned from the unlawful tape recordings of the telephone conversations. He also argued that the pen register constituted an unlawful "interception" of a telephonic communication forbidden by § 10-402 of the Courts Article. He furthermore maintained that, absent a court order or search warrant, the use of the pen register constituted an illegal search and seizure in contravention of the fourth amendment to the federal constitution. Finally, Smith argued that without the illegally obtained electronic evidence he would not have been arrested, required to appear in a line-up and identified by the victim. He therefore claimed that the line-up identification should also be suppressed, but he withdrew this contention before the trial judge acted on his motions.

The trial judge overruled the motions to suppress, and the electronically obtained evidence was admitted. Smith was found guilty of robbery and sentenced to ten years in prison. We granted certiorari prior to decision by the Court of Special Appeals to review the important issues raised in the case.

(1)

The Tape Recorded Telephone Conversations

At the trial, the State conceded that the recording of the telephone conversations violated § 125A of Art. 27. It maintained that the tape recordings were nevertheless admissible in evidence because the only sanction prescribed by the statute was criminal prosecution of those who violate its provisions. The Court of Special Appeals so held in Reed v. State, 35 Md.App. 472, 372 A.2d 243 (1977), and Pennington v. State, 19 Md.App. 253, 310 A.2d 817 (1973), Cert. denied, 271 Md. 742, Cert. denied, 419 U.S. 1019, 95 S.Ct. 492, 42 L.Ed.2d 292 (1974). The appellant does not challenge that interpretation of the statute, and we therefore have no occasion to consider the question in this case.

Appellant claims instead that the attachment to the victim's phone of the recording device without a court order constituted an illegal "interception" of a telephonic communication in contravention of § 10-402 of the Courts Article.

Until its repeal by ch. 692 of the Acts of 1977, 2 § 10-402 was part of the Maryland Wire Tapping Act, §§ 10-401 through 10-408 of the Courts Article, in effect at the time of the appellant's arrest and prosecution. That Act declared in § 10-401 that the right of the people to be secure against "unreasonable interception of telephonic . . . communications may not be violated." It expressed the legislative mandate that the "interception and divulgence of a private communication by any person not a party thereto is contrary to the public policy of the state, and may not be permitted except by court order in unusual circumstances to protect the people." Section 10-402(a) makes it unlawful, absent a court order, for any person to obtain a telephonic communication to which he is not a participant by means of any device unless consent is given by the participants. Section 10-406 provides that evidence obtained in violation of the Maryland Wire Tapping Act is inadmissible in court.

The appellant relies on Robert v. State, 220 Md. 159, 151 A.2d 737 (1959), as authority for the exclusion of the tape recordings under § 10-402(a). In Robert, police officers, anticipating that the defendant would make a phone call to certain friends in a motel, positioned themselves at the motel's telephone switchboard. When the expected call came through the switchboard, the officers monitored it by means of a headset connected through a press key to the switchboard. After observing that the officers could not be classified as participants in the conversation, and that they overheard it without the consent of all of the participants, our predecessors held that the headset was an electrical device by which the officers obtained the telephone conversation in contravention of the Act's provisions, rendering the evidence thereby obtained inadmissible in court.

Robert is plainly inapposite on its facts. There, the police officers were not participants in the conversation. In the present case, Miss McDonough was a participant in the conversations which she recorded. There is no requirement in § 10-402(a) that consent to the recording must be given by all participants in the conversation. Consequently, there was no violation of § 10-402(a), although plainly the recording of the conversations violated Art. 27, § 125A. Cf. Clark v. State, 2 Md.App. 756, 237 A.2d 768 (1968), Cert. denied, 394 U.S. 1001, 89 S.Ct. 1597, 22 L.Ed.2d 779 (1969).

Appellant's suggestion that it was Heline and not the victim who recorded the conversations is not supported by the record. Nor is there any evidence to support Smith's claim that in attaching the recording device to the victim's phone Heline acted as a police agent. Simply because the police learned, after the fact, that the device had been attached to the victim's...

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    ...of privacy in bank or telephone records obtained by law enforcement by subpoena pursuant to Miller and Smith); Smith v. State, 283 Md. 156, 389 A.2d 858, 868 (1978) (no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system); State v. Melv......
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