State v. Siegel

• Decision Date: 29 November 1971
• Docket Number: No. 111,111
• Citation: 285 A.2d 671,13 Md.App. 444
• Parties: STATE of Maryland v. Maurice T. SIEGEL.
• Court: Court of Special Appeals of Maryland

Page 444

13 Md.App. 444

285 A.2d 671

STATE of Maryland v. Maurice T. SIEGEL.

No. 111.

Court of Special Appeals of Maryland.

Nov. 29, 1971.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Howard L. Cardin, State's Atty., Joseph Kiel, And Charles O. Fisher, Jr., Asst. State's Attys., Baltimore City, on brief, for appellant.

Norman P. Ramsey and H. Thomas Howell, Baltimore, for appellee.

Argued before MORTON, ORTH, THOMPSON, POWERS and GILBERT, JJ.

ORTH, Judge.

We find:

(1) Ch. 119, 18 U.S.C. §§ 2510-2520, entitled Wire Interceptions and Interception of Oral (2) a judge of the Supreme Bench of Baltimore City, presiding in the Criminal Court of Baltimore, and a judge of a Circuit Court of a county of this State may enter orders authorizing interceptions of wire or oral communications;

Communications (the federal act) is constitutional; ¹

(3) the entering of such orders, all matters with regard to the execution of them, and the use and disposition of property seized under them shall be in conformity with the provisions of the federal act;

(4) such orders may be entered only when the interception of wire or oral communications may provide evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs or any conspiracy to commit any of such offenses;

(5) no interception of a wire or oral communication shall be made without an order authorizing it being first obtained.

The occasion for these findings is the appeal by the State from the grant on 30 November 1970, by Harris, J., presiding in the Criminal Court of Baltimore of a motion by Maurice T. Siegel to dismiss the indictment returned against him. The indictment was filed on 14 December 1969 and presented that from 1 January 1965 to 12 November 1969 Siegel, an attorney at law, and Robert London, a bail bondsman, unlawfully conspired to violate the lottery laws. The indictment was the result of information gleaned from the interception of telephonic

communications of London. London's telephonic communications were intercepted under the authority of three orders entered by Harris, J., on 6 October, 13 October and 5 November 1969. Judge Harris noted in granting the motion to dismiss that the orders had been entered under the provisions of Code, Art. 27, § 125A, ² Code, Art. 35, § 94, ³ and 'Title III of the Omnibus Crime and Control and Safe Streets Act of 1968, 18 U.S.C. Section 2516.' The reasons he gave for dismissing the indictment as to Siegel were those 'stated in paragraph no. 7 of Siegel's Motion to Dismiss.' Paragraph 7 alleged that the contents of the telephonic and oral communications had been unlawfully intercepted and disclosed. As reasons why the interceptions and disclosures were unlawful, it included the reasons set forth in a 'Motion to Suppress Intercepted Communications and All Evidence, Information, Leads and Fruits Derived Therefrom, and for Other Relief' filed by Siegel by incorporating them by reference. Among those were that the federal act and the State acts were unconstitutional and that the orders were not entered in conformance with the statutes in any event. We shall discuss our findings and then apply them to the case before us. ⁴

THE CONSTITUTIONALITY OF THE FEDERAL ACT

Four cases decided by the Supreme Court, one at the end of 1966 and the others in 1967, cleared the way for In Berger the Court considered the constitutionality of a New York statute providing for the interception of conversations by wiretapping and eavesdropping methods. N.Y.Code Crim.Pro. § 813-a (1967). It found expressly that conversation was within the ambit of Fourth Amendment protection and held that the use of electronic devices to capture it was a 'search' within the meaning of that Amendment. 388 U.S. at 51, 87 S.Ct. 1873, 18 L.Ed.2d 1040. It found in short that the New York law was constitutionally defective because it made a 'blanket grant of permission to eavesdrop * * * without adequate judicial supervision or protective procedures.' 388 U.S. at 60, 87 S.Ct. at 1884. Specifically it was offensive in four areas. (1) Eavesdropping was authorized (a) without requiring belief that any particular offense had been or was being committed, and (b) without the need that the conversations sought be particularly described. ⁶ 'As with general warrants this leaves too much to the discretion of the officer executing the order.' At 59, 87 S.Ct. at 1883. (2) Eavesdropping was authorized for a two months period with extensions of that period. This was the equivalent of a series of intrusions, searches and Hayden created a suitable environment for statutory surveillance of communications by obliterating the distinction between 'mere evidence' and evidence amounting to fruits and instrumentalities of the crime, or contraband. Prior to Hayden 'mere evidence' was not subject to seizure. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). Hayden made all incriminating evidence subject to seizure so long as it had a connection with the suspected criminal behavior.

the enactment of legislation giving sanction to the interception of wire and oral communications ⁵-Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 seizures to a single showing of probable cause and prompt execution was avoided. An extension was authorized on a mere showing that it was 'in the public interest', and this is insufficient without a showing of 'present probable cause' for the extension. (3) There was no termination date of the eavesdrop once the conversation sought was seized, the suspension of the surveillance being left entirely in the discretion of the officer. (4) There was no requirement for notice as in conventional warrants and this defect was not overcome by requiring a showing of exigent circumstances. Nor did the statute provide for a return on the warrant, thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties.

Katz has been cited by legal commentators as authority for four propositions. ⁷ (1) Conversations as well as physical evidence were subject to seizure pursuant to the Fourth Amendment. This was alogical extension of Hayden which discredited '(t)he premise that property interests control the right of the Government to search and seize * * *.' 389 U.S. at 353, 88 S.Ct. at 512. (2) The Fourth Amendment protects a person from unreasonable seizure of his conversations from a place where he has a reasonable expectation of privacy-'* * * what he seeks to preserve as private, even in an area accessible to the Berger and Katz each relied in large extent on Osborn, 388 U.S. at 56-58, 87 S.Ct. 1873, 18 L.Ed.2d 1040; 389 U.S. at 355, 88 S.Ct. 507, 19 L.Ed.2d 576. Osborn held that under sufficiently 'precise and discriminating circumstances', a federal court may empower government agents to employ a concealed electronic device 'for the narrow and particularized purpose of ascertaining the In the light of Berger, Hayden, Katz and Osborn a judicially approved interception of communications could be constitutionally permissible if conducted under rigid Fourth Amendment controls. It appears that the federal act is a congressional response, the final version of which was drafted to meet the standards of Berger and Katz. S.Rep.No.1097, 90th Cong., 2d Sess. 66 (1968). And see record of floor debate, 114 Cong.Rec. 90th Cong. 2d Sess., pp. 6186-6292. We think it meets those standards.

                public, may be constitutionally protected.'  Id., at 351-352, 88 S.Ct. at 511.  (3) Expectation of privacy does not depend on whether or not the intrusion constitutes a physical trespass.  'For the Fourth Amendment protects people, not places.'  Id., at 351, 88 S.Ct. at 511.  (4) Surveillance of communications to accommodate 'the legitimate needs of law enforcement' may be authorized by judicial order issued in accordance with appropriate Fourth Amendment safeguards.  Id., 389 U.S. at 356, 88 S.Ct. at 514.  8  The [285 A.2d 676] safeguards that were lacking in the surveillance in Katz were that the Government agents were not required (a) before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate; (b) during the conduct of the search to observe precise limits established in advance by a specific court order; (c) after the search, to notify the authorizing magistrate in detail of all that had been seized.  9
                truth of the * * * allegations' of a 'detailed factual affidavit alleging the commission of a specific criminal offense.' 385 U.S. at 329-330, 87 S.Ct. at 433.  Discussing that holding in Berger, 388 U.S. at 57, 87 S.Ct. at 1882, the Court said that 'the order authorizing the use of the electronic device' in Osborn 'afforded similar protections to those * * * of conventional warrants authorizing the seizure of tangible evidence.'  Through those protections, 'no greater invasion of privacy was permitted than was necessary under the circumstances.'  See 389 U.S. at 355, 88 S.Ct. at 513
                

We observe preliminarily that in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, the constitutionality of the federal act was upheld tacitly if not specifically. Delivering the opinion of the Court Mr. Justice White stated with respect to the sanctity of Fourth Amendment rights.

'In this respect we are mindful that there is now a comprehensive statute ¹⁰ making unauthorized electronic surveillance a serious crime. The general rule under the statute is that official eavesdropping and wiretapping are permitted only with probable cause and a warrant. Without experience showing the contrary, we should...