State v. Mazzone

• Citation: 648 A.2d 978,336 Md. 379
• Decision Date: 01 September 1994
• Docket Number: No. 6,6
• Parties: STATE of Maryland v. Roland MAZZONE. ,
• Court: Maryland Court of Appeals

Page 379

336 Md. 379

648 A.2d 978

STATE of Maryland v. Roland MAZZONE.

No. 6, Sept. Term, 1994.

Court of Appeals of Maryland.

Oct. 24, 1994.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioner.

Russell J. White, Towson, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

MURPHY, Chief Judge.

This case concerns whether the Maryland Wiretapping and Electronic Surveillance Act, codified as Maryland Code (1973, 1989 Repl.Vol.) §§ 10-401 to 10-414 of the Courts and Judicial Proceedings Article, allows law enforcement agents to purposefully intercept privileged marital communications. ¹ In addition, we consider whether all of the evidence obtained pursuant to a wiretap order must be suppressed because minimization guidelines accompanying the order contained a misstatement of law concerning the scope of the marital communications privilege.

I

A

In 1968, Congress established minimum standards governing the interception of wire, oral, and electronic communications (known as Title III of the Omnibus Crime Control and Safe Streets Act). 18 U.S.C. §§ 2510-2521 (1988). The Federal act sought to balance two major purposes: 1) to protect the privacy of individuals as required by the Fourth Amendment ², and 2) to aid 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); Mustafa v. State, 323 Md. 65, 69, 591 A.2d 481 (1991); 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).

Pursuant to Title III, the Maryland legislature enacted the Wiretapping and Electronic Surveillance Act. §§ 10-401 to 10-414. The Maryland statute closely tracks the federal statute, being more restrictive than the federal statute in only a few provisions.

Under the statute, certain law enforcement officials may apply to a circuit court judge for an ex parte order authorizing a wiretap. §§ 10-406, 10-408. The judge may grant the wiretap order "when the interception may provide or has provided evidence of the commission of [certain designated crimes]." § 10-406. The wiretap order must include, among other things, "[a] particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates." § 10-408(d)(1)(iii). Wiretapping without a valid order is illegal, § 10-402, and evidence derived therefrom is inadmissible in court. § 10-405.

For the purpose of evaluating the validity of a wiretap order, this Court has established a dichotomy between preconditions and post conditions. State v. Bailey, 289 Md. 143, 152-54, 422 A.2d 1021 (1980). Preconditions include the actions that must be taken before a judge may issue an ex parte wiretap order and the inclusion of certain provisions required to be in the wiretap order. Id. at 153-54, 422 A.2d 1021. One such precondition is the requirement in § 10-408(e)(3) that "[e]very order and extension thereof shall contain a provision that the authorization to intercept ... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this subtitle...." See State v. Siegel, 266 Md. 256, 273-74, 292 A.2d 86 (1972) (holding this requirement to be a precondition to obtaining intercept authority). With regard to preconditions, we said that the statute "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 86 (emphasis in original). Failure of a precondition requires suppression of all the evidence obtained under the wiretap. Id. See also § 10-408(i)(1)(ii) (stating as a ground for suppression that "[t]he order of authorization under which [the communication] was intercepted ... was not obtained or issued in strict compliance with [the wiretapping statute]") (emphasis added).

Post conditions are the actions that must be taken after a valid wiretap order has been issued, including compliance with the minimization mandate in the order. Bailey, supra, 289 Md. at 153-54, 422 A.2d 1021. To post conditions, we apply a substantial compliance standard. Id. In the context of minimization, the substantial compliance standard is actually a reasonable compliance standard, which evaluates "the overall reasonableness of the totality of the conduct of the monitoring agents in light of the purpose of the wiretap and the information available to the agents at the time of interception." Spease and Ross v. State, 275 Md. 88, 99, 338 A.2d. 284 (1975). Under this standard, imperfect compliance with a post condition does not require suppression of the evidence obtained pursuant to the wiretap order, so long as the level of compliance is reasonable under the circumstances. Furthermore, we have never decided what sanction we would apply if the monitoring agents were to fail to reasonably comply with the minimization mandate.

B

The marital communications privilege is codified at § 9-105. It provides that "[o]ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage." We have observed that "[c]ommunications between husband and wife occurring during the marriage are deemed confidential if expressly made so, or if the subject is such that the communicating spouse would probably desire that the matter be kept secret, either because its disclosure would be embarrassing or for some other reason." Coleman v. State, 281 Md. 538, 542, 380 A.2d 49 (1977). See also State v. Enriquez, 327 Md. 365, 372, 609 A.2d 343 (1992) (quoting Coleman ). A spouse claiming the privilege need not "establish the confidential nature of the communication, as there is a rebuttable presumption that marital communications are confidential and privileged." Enriquez, supra, 327 Md. at 372, 609 A.2d 343; see also Coleman, supra, 281 Md. at 543, 380 A.2d 49. This presumption can be rebutted by a showing "that the communication was not intended to be confidential, or was made to, or in the presence of a third party." Id. at 543, 380 A.2d 49. In Maryland, the marital communications privilege applies even when the communication is made in furtherance of a crime. Id. at 545, 380 A.2d 49.

In Coleman, we recognized that the policy reasons underlying the privilege are

"(1) that the communications originate in confidence, (2) the confidence is essential to the relation, (3) the relation is a proper object of encouragement by the law, and (4) the injury that would inure to it by the disclosure is probably greater than the benefit that would result in the judicial investigation of truth."

Id. at 541, 380 A.2d 49. We also stated: "The essence of the privilege is to protect confidences only, and thereby encourage such communications free from fear of compulsory disclosure, thus promoting marital harmony." Id. (citations omitted).

II

Beginning in 1989, the Harford County Narcotics Task Force and Baltimore County authorities jointly investigated the activities of Carl Briscoe for suspected cocaine distribution. In the course of the investigation the task force began to suspect that respondent Roland Mazzone, who lived in Baltimore County, was involved in the distribution ring. ³ On June 19, 1991, the State's Attorney for Baltimore County filed with the Circuit Court for Baltimore County ex parte applications to intercept and record conversations to and from two telephones (one at Mazzone's home, the other at his business, Valley View Inn) from June 20 to July 20, 1991. A circuit court judge approved the applications and, on June 19, signed orders authorizing the interceptions. The orders authorized the wiretaps, setting forth certain conditions, including a statement in the orders that the interceptions be conducted "in such a way as to minimize the interception of communications not otherwise subject to interception under Title 18, United States Code, Section 2510-2520, and the Courts and Judicial Proceedings Article, Section 10-401 through 10-414, of the Annotated Code of Maryland."

At the time the orders were signed, the court also approved written minimization guidelines, formulated by the State's Attorney, which were to apply to the interceptions. The guidelines included a section on privileged communications, stating, in relevant part:

"Under Maryland Law, we will be concerned with privileged communications involving lawyer-client, husband-wife, priest-penitent, accountant-client and psychiatrist/psychologist-patient relationship. Contact the above listed Assistant State's Attorney's [sic] for Baltimore County for instructions if you anticipate that you are about to monitor such a conversation and cannot affirmatively decide to minimize it completely. If it appears that the communication does discuss the commission of a designated crime itself, the privilege is breached and the whole conversation is to be monitored. If it appears that the communication might discuss the commission of a designated crime then spot monitoring shall be employed. If the communication does not involve the commission of a crime then the privilege applies absolutely and must be completely minimized as soon as the speakers identify themselves.

"All husband and wife communications are privileged; but discussions which involve the commission of the designated crime may be intercepted. All other communications must be minimized and spot monitoring must be employed carefully."

On July 12, 1991, pursuant to further ex parte applications by the State's Attorney, the court terminated the interceptions authorized by the June 19 order and issued new orders, which authorized continuing the interceptions on the two telephones that were the subject of the June 19 order and initiating interceptions on two additional telephones at Mazzone's business. The court approved a new set of...