Adams v. State

Chasanow, J., delivered the opinion of the Court. The appellant was tried and convicted in the Circuit Court for Anne Arundel County of first degree rape, first degree sexual offense, burglary, and assault and battery. The charges arose out of an incident which took place on April 6, 1978, when someone broke into the victim’s apartment, struck her with a blunt object, performed cunnilingus on her, and raped her. During the course of the assault, the victim engaged her assailant in conversation in an attempt to convince him that a friend was coming to see her and to dissuade him from harming her.

At some point, the attacker gave his name as Gregory, and the victim falsely gave her name as Nancy. After the completion of the rape, the victim told her attacker, “God bless you, Gregory, for not hurting me anymore.” Before leaving the victim’s residence, her attacker said, “God bless you, Nancy.” In the course of the police investigation, the victim made a photographic identification, a voice identification, and a lineup identification; the latter two identifications are at issue here. On the morning following the attack, after reviewing an extensive number of photographs, the victim identified either four or six photographs of persons who resembled her attacker. 1 On April 14, 1978, the police attempted to secure ⁵³⁰ a voice identification by placing telephone calls from the police station while the victim listened on an extension telephone which had the mouthpiece removed. A total of four telephone calls were placed; three in the morning and the fourth later that afternoon.

The first two were made to police officers within the department; the third was placed to the appellant’s telephone, but he was not at home; and the fourth call was placed that afternoon, again to the appellant’s home. The police officer who placed the calls, identified herself as a Miss Wetzel from the Department of Social Services and engaged the recipient of the call in conversation. By listening to the speech patterns, the victim was able to reject the first two, but identified the recipient of the fourth call as “Gregory,” her assailant, as soon as he said, “Hello,” on the telephone. 2 On the same day the phone calls were made, the appellant was arrested and placed in a lineup with four other participants. The appellant was the only person in the lineup whose photograph was initially selected by the victim as one of the four or six persons who resembled her attacker.

When the victim saw the. men in the lineup, she identified the appellant as her attacker. As a further measure, each of the participants was asked to say, “God bless you, Nancy.” The victim again identified the appellant’s voice after the words were spoken. The appellant objected to the admission into evidence of a statement blurted out by him at the time of his arrest. The arresting officer testified, over objection, that as the appellant was being arrested he stated, “You guys are hassling me again for something that occurred a week ago.

I didn’t have nothing to do with it and you guys are hassling me.” The appellant contends that this statement was a product of an illegal arrest and should have been suppressed. The Maryland Wiretapping and Electronic Surveillance Act The appellant first argues that the trial judge erred in admitting the testimony concerning the voice identification ⁵³¹ made by the victim. The objection was based on the Maryland Wiretapping and Electronic Surveillance Act, Cts. and Jud. Proc. §§ 10-401 through 10-412 (1977) (1978 cum. supp.) (hereinafter referred to as the Act).

Under the Act, Section 10-402 (a) (1) makes it unlawful to: “Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire or oral communication.” Section 10-401 defines certain terms used in the Act. It includes the following definitions pertinent here: “(3) ‘Intercept’ means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device; (4) ‘Electronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire or oral communication other than. (i) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (a) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (b) being used... by an investigative or law enforcement officer in the ordinary course of his duties.” (Emphasis added.) Moreover, whenever any wire or oral communication has been intercepted in violation of the Act, “... no part of the contents of the communication and no evidence derived therefrom may be received in evidence ....” Id., § 10-405. The issue posed by the appellant is whether an extension telephone used at the direction of a police officer, in a police station under the circumstances of this case, constitutes an “electronic, mechanical, or other device” as defined in the Act.

If the extension was furnished to the subscriber by a communications common carrier in the ordinary course of its business and was used by the subscriber or user in the ⁵³² ordinary course of business or if the extension was used by an investigative or law enforcement officer in the ordinary course of his duties, the telephone extension would not be an “electronic, mechanical, or other device” as defined in the Act, and there would be no interception. 3 It must first be noted that although the actual eavesdropping was by the victim, who was a passive, non-participating party to the telephone conversation, the victim was acting as an agent of a law enforcement officer. The victim was asked to go to the station to assist in the investigation and was asked to sit at the extension telephone to listen, and in that regard, the use of the extension was at the direction of and by an investigative or law enforcement officer. The status of an extension telephone as a device for telephonic interception has been at issue in a number of cases under various statutes. The Federal Communications Act of 1934, 47 U.S.C. § 605 , provided, in part, that “no person not being authorized by the sender shall intercept any communication —” The United States Supreme Court in Rathbun v. United States, 355 U.S. 107 , 78 S.Ct. 161 , 2 L.Ed.2d 134 (1957), held that when a party receiving a phone call consents to the police using an extension telephone to listen to a conversation, there is no violation of the statute, since an extension telephone is not a device used for interception of messages.

The Court noted: “The telephone extension is a widely used instrument of home and office____ The clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him____Common experience tells us that a call to a particular number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an ⁵³³ extension telephone and may allow another to overhear the conversation.” 355 U.S. at 109-111 . The basis underlying the Rathbun decision has also been applied where the police listened in on the extension phone of the person who placed the call, rather than the one who received it. See, for example, United States v. Pate, 330 F.2d 126 (7th Cir. 1964), cert. den. 379 U.S. 891 , 85 S.Ct. 165 , 13 L.Ed.2d 95 (1964); Ladrey v. Commission on Licensure to Practice, 261 F.2d 68 (D.C. Cir. 1958), cert. den. 358 U.S. 920 , 79 S.Ct. 288 , 3 L.Ed.2d 239 (1958), where it was noted: “No one is bound to answer a ringing telephone.

If he does pick up the receiver, he is not required to talk to the outside caller. If he chooses to talk, he may well understand that the calling party, the original ‘sender’ may have others listening to the conversation, whether in a group around the caller’s telephone or on an extension attached to it.” Id., at 72-73. In Maryland, the predecessor to our current Wiretapping and Electronic Surveillance Act provided, in part, that no person shall: “Obtain or attempt to obtain the whole or any part of a telephonic or telegraphic communication to which such person is not a participant by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by the participants.” Md. Ann. Code, Art. 35, § 93 (a) (Repealed by Ch. 2, Laws of Maryland, Special Session, 1973.). In Clark v. State, 2 Md. App. 756 , 237 A.2d 768 (1968), cert. den. 394 U.S. 1001 , 89 S.Ct. 1597 , 22 L.Ed.2d 779 (1969), we noted that although the Maryland Act and the federal statute ( 47 U.S.C. § 605 ) differed in material aspects, we found the observations made in Rathbun applicable to Maryland despite the difference in statutory language: “... we do not believe that the Legislature intended to place a severe restriction on the ordinary usage ⁵³⁴ by subscribers of telephone extensions by denying the subscriber the right to allow a family member, an employee, a friend, or the police to listen to a conversation to which the subscriber is a party.” 2 Md. App., at 765 .

In Clark, an arson victim allowed the police to listen on a telephone extension in her home while she called the defendant in an attempt to elicit a confession from him. During one of these conversations, the defendant admitted his complicity in the crime and we held the police officer’s testimony was properly admitted. In that opinion, Chief Judge Murphy noted: “... the admissibility in evidence of the contents of a communication overheard on a regularly used telephone extension is not controlled by the provisions of the Maryland Wire Tapping Act, since the Legislature never intended that the use of such an extension telephone would be considered as a means for ‘intercepting’ or ‘obtaining’ a telephonic communication within the meaning of the Act____” 2 Md. App., at 765-766 . In 1968, Congress passed a comprehensive electronic surveillance law in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 through 2520 (1970).

Maryland followed suit, and in 1977 the legislature enacted a new Wiretapping and Electronic Surveillance Act, Cts. and Jud. Proc. §§ 10-401 through 10-412, which replaced our prior statute. The Maryland statute closely parallels Title III of the federal statute, Smith v. State, 283 Md. 156, 161, n.2 ; 389 A.2d 858, 861, n.2 (1978), aff’d, 61 L.Ed.2d 220 (1979), but it differs in several aspects, two of which may be pertinent to the instant case. These two differences arise in connection with interception of communications generally, found in the Maryland Act at § 10-402 and in the federal act at 18 U.S.C. § 2511 .

Federal law provides: “(c) It shall not be unlawful under this chapter [ 18 U.S.C. § 2510 et seq.] for a person acting under color ⁵³⁵ of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. (d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception____” 18 U.S.C. § 2511 (2). (Emphasis added.) In 1973, our legislature passed House Bill 962 which included these provisions allowing for interceptions when only one party consents. The Governor vetoed the bill, citing the two provisions and stating: “The very opportunity for unwarranted spying and intrusions on people’s privacy authorized by this bill is frightening____” 1973 Md. Laws 1925 .

In 1977, the legislature again passed a wiretap act; this time with the following substitutes for the sections which the Governor found so offensive: “(2) It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire or oral communication in order to provide evidence of the commission of the offenses of murder, kidnapping, gambling, robbery, any felony punishable under the ‘Arson and Burning' subheading of Article 27, bribery, extortion, or dealing in controlled dangerous substances, or any conspiracy to commit any of these offenses, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception. (3) It is lawful under this subtitle for a person to intercept a wire or oral communication where the person is a party to the communication and where ⁵³⁶ all of the parties to the communication have given prior consent to the interception ..Cts. and Jud. Proc. § 10-402 (c) (1977) (1978 cum. supp.) (Emphasis added.) The effect of the changes in language is that an “interception” will be lawful only if all of the participants to the communication give their consent to interception. There is the exception, not applicable in this case, for an investigative or law enforcement officer acting with consent of only one of the parties, in order to provide evidence of certain designated crimes.

Cts. and Jud. Proc. § 10-402 (c) (2) (1977) (1978 cum. supp.) Thus, by making both participants’ consent mandatory, our law has imposed stricter requirements for civilian monitoring than has federal law and in designating certain offenses where one party can consent to interception by a law enforcement agent, the legislature has restricted monitoring by investigative or law enforcement officers. See, R.P. Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U.Balt.L.Rev. 183,194 (1979); Legislation, The 1977Maryland Wiretapping and Electronic Surveillance Act, 7 U.Balt.L.Rev. 374 (1978). We note that the crimes designated in the Act do not include any of the crimes with which the appellant was charged, so section 10-402 (c) (2) would not authorize interception with consent of only one party in the instant case.

Id. Although the federal and Maryland acts differ in these two respects, in the section which is dispositive of the issue before us, the federal and the Maryland acts are identical; both acts define the terms “intercept” and “electronic, mechanical, or other device,” using the same language. Although the cases such as Rathbun and Clark were not decided under the current law, much of the underlying rationale for those opinions can be found in the statutory definitions. The definition of intercept, as set forth above, includes the necessity for the use of an electronic, mechanical, or other device.

Thus, some kind of “device” must be used, and for ⁵³⁷ example, to overhear a private conversation by the use of one’s senses alone without the aid of an electronic, mechanical, or other device would not constitute an interception under the