Sun Kin Chan v. State, 754

• Decision Date: 01 September 1988
• Docket Number: No. 754,754
• Citation: 552 A.2d 1351,78 Md.App. 287
• Parties: SUN KIN CHAN v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 287

78 Md.App. 287

552 A.2d 1351

SUN KIN CHAN v. STATE of Maryland.

No. 754, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Feb. 7, 1989.

Deborah L. Moran (James J. Cromwell, John C. Monahan and Frank, Bernstein, [552 A.2d 1354] Conaway & Goldman, on the brief) Bethesda, for appellant

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty., for Montgomery County, Rockville, on the brief), for appellee.

Argued Before MOYLAN, BISHOP and JAMES S. GETTY, (Retired, Specially Assigned), JJ.

MOYLAN, Judge.

The appellant, Sun Kin Chan, was convicted in the Circuit Court for Montgomery County by Judge William M. Cave 1. That all of the evidence found in the search of 10500 Rockville Pike should have been suppressed because the warrant for that search was the tainted product of an unconstitutional and/or unlawful "trap and trace" placed upon his telephone; and

sitting without a jury, of 1) possession of cocaine with intent to distribute, 2) possession of drug paraphernalia, 3) illegal gambling, and 4) possession of a short-barrelled shotgun. Upon this appeal, he raises essentially two contentions:

2. That the evidence was not legally sufficient to support the convictions.

In 1986, the Vice Intelligence Unit of the Montgomery County Police Department began an investigation into illicit bookmaking operations. After conducting a surveillance of 10500 Rockville Pike in December, 1986, the police obtained a court order for the installation of a pen register on telephone number 897-5875, registered to that address.

Pursuant to that order, they installed a "pen register," a mechanical device for recording the numbers dialed from that telephone, and a "trap and trace," a separate device which records the originating number of all incoming calls (whether completed or merely attempted). An additional feature of the investigative technique used was a "dialed number recorder," which records the duration of all calls, whether incoming or outgoing.

The statistical data compiled over the eighty-day period from February 20, 1987, through May 11, 1987, provided overwhelming evidence of a gambling operation. Over 5,000 calls were received or made, most of them during "prime time betting hours." Hundreds of outgoing calls were to half-a-dozen various "sports hotlines," providing up-to-the-minute data on every type of sporting event, including the current "betting line." Based upon that data, Judge Cave issued a search and seizure warrant for 10500 Rockville Pike. In executing that search warrant, the police Essentially conceding the legitimacy of the court order for the "pen register," the appellant argues strenuously that the "trap and trace" of the incoming calls went beyond the scope of the court order and was, therefore, in some fashion unconstitutional and/or unlawful. His argument is that the information thus unconstitutionally or unlawfully obtained thereby tainted both the search warrant based upon it and, ipso facto, the search executed pursuant to that warrant. He takes exclusion for granted.

recovered not only evidence of gambling but the drugs, drug paraphernalia, and shotgun as well.

THE PROBLEM OF PINPOINTING THE ISSUE

It is initially difficult to come to grips with the appellant's argument because of its elusive, phantom quality. It meanders randomly in and out of the Fourth Amendment, the Federal Wiretapping Statute, the Maryland Wiretapping Statute, the Federal Pen Register Statute and the Maryland Pen Register Statute. When one of these proves in some respect unavailing, the argument shifts nimbly to another which, though availing in that one regard, may be unavailing in some other. The appellant never tells us precisely what law has been violated or in precisely what fashion. We are left with the impression of something bad lurking out there in the mists but that something is never cleanly identified. Countering the argument is like trying to pin down a cloud. The appellant presents us, as if through a kaleidoscope, with an amalgam created out of bits and pieces of various laws.

If the appellant blurs the arguable wrong done to him, his argument is even more diffuse with respect to the arguable remedy. He refers casually to the Exclusionary Rule as if such a monolithic phenomenon even exists. With the remedy as with the wrong, differentiation is called for.

There is, of course, no such thing as the Exclusionary Rule. There are many exclusionary rules, just as there are also many wrongs not redressed by the exclusion of evidence.

There are Federal exclusionary rules and state exclusionary rules. There are judicially created exclusionary rules and legislatively created exclusionary rules. There are constitutional exclusionary rules and statutory exclusionary rules. There are broad exclusionary rules and, as with the wiretapping statutes, highly particularized exclusionary rules available only for infractions of certain specified laws. There are exclusionary rules aimed only at governmental officials and exclusionary rules aimed at everybody. There are exclusionary rules applicable only in criminal trials upon the merits and exclusionary rules barring the use of evidence in any forum in any fashion.

Before invoking one of these exclusionary rules, the complaining party must first identify the wrong allegedly done to him and then determine which, if any, exclusionary rule has been specifically provided for the redress of that particular wrong. If Violation A has occurred, one may not resort to an exclusionary rule which has been provided only for Violation B.

In the case before us, there are five possible violations of the law that the appellant seems to claim. There are, therefore, five possibilities for redress in terms of one or another exclusionary rule or lack thereof.

                -------------------------------------------------
                      LAW VIOLATED           EXCLUSIONARY RULE
                      ------------           -----------------
                -------------------------------------------------
                    FOURTH AMENDMENT            MAPP V. OHIO
                -------------------------------------------------
                   FEDERAL WIRETAP LAW           SEC. 2515
                                                 18 U.S.C
                -------------------------------------------------
                  MARYLAND WIRETAP LAW          SEC. 10-405
                                           CTS. & JUD.  PROC. ART
                -------------------------------------------------
                FEDERAL PEN REGISTER LAW    NO EXCLUSIONARY RULE
                -------------------------------------------------
                MARYLAND PEN REGISTER LAW   NO EXCLUSIONARY RULE
                -------------------------------------------------
                

We turn our attention, one by one, to the possible constitutional provisions or statutes that may have been violated. If any such violation is found to have occurred, we will consider which, if any, exclusionary rule may have been created to deal with such a violation.

THE FOURTH AMENDMENT NOT INVOLVED

In the context of intercepted telephone communications, the expectation of privacy contemplated by the Fourth Amendment goes only to the content of the communication and not to the fact that the communication took place. In defining the limits of Fourth Amendment protection, Maryland anticipated the Supreme Court. In Smith v. State, 283 Md. 156, 389 A.2d 858 (1978), Chief Judge Murphy spoke for the majority of the Court of Appeals in holding that pen register surveillance does not come within the ambit of the Fourth Amendment. He pointed out, at 283 Md. 167-168, 389 A.2d 858, "It is generally held that the expectation of privacy protected by the fourth amendment attaches to the content of a telephone conversation and not to the fact that a conversation took place."

After analyzing numerous state and Federal cases and academic authorities, Judge Murphy pointed out that there is no remaining expectation of privacy in a fact that is necessarily revealed to the telephone company in order for a call to be completed. Although Smith v. State, supra, dealt literally with a "pen register," its rationale would apply with equal validity to a "trap and trace." Regardless of the direction of the telephone call, whether outgoing or incoming, the dialer has of necessity revealed to the telephone company the number to be dialed. The Court of Appeals rationale distinguishes only between the content of a call and the fact of a call. The inapplicability of the Fourth Amendment is bi-directional:

"While the content of a call is not revealed to the telephone company, the information as to the number dialed must necessarily be revealed, since it is through telephone company switching equipment that calls are completed. As a recipient of such information, the company may reveal it since the caller can have no reasonable expectation that it will remain private. In fact, the caller should have even less of a justified expectation of privacy, since unlike the disclosures in [United States v.] White [401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) ] and [United States v.] Miller [425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) ] the use of a pen register does not reveal the contents of a communication."

283 Md. at 172, 389 A.2d 858. The holding of the Court of Appeals clearly did not depend upon the direction of the telephone call being traced:

"We hold that there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within the fourth amendment is implicated by the use of a pen register installed at the central offices of the telephone company. While the guarantees of the fourth amendment are broad, they are not boundless ...; not everything a person may want to be private is protected by the fourth amendment. As Katz [v. United States, 389 U.S. 283 Md. at 173-174, 389 A.2d 858.

347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ] teaches, the fourth amendment does not afford our citizens 'a general constitutional right to privacy.' " (Citation...