Baldwin v. State

Gilbert, C. J., delivered the opinion of the Court. — THE LAW — Judge J. Dudley Digges, writing for a unanimous Court of Appeals, declared that the Federal Wire Interception and Interception of Oral Communications sections ( 18 U.S.C. §§ 2510-2520 (1976)) of the Omnibus Crime Control and Safe Streets Act of 1968 "sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” (Emphasis in original.) State v. Siegel, 266 Md. 256, 274 , 292 A.2d 86, 95 (1972), aff'g 13 Md. App. 444 , 285 A.2d 671 (1971). Although the above-quoted words of Siegel have not been chiseled into granite, we have, in a series of cases, endeavored to impress on the bench and bar that the words mean precisely what they say. See e.g., Shingleton v. State, 39 Md. App. 527 , 387 A.2d 1134 , cert. denied, 283 Md. 738 (1978); Poore v. State, 39 Md. App. 44 , 384 A.2d 103 , cert. denied, 282 Md. 737 (1978); Calhoun v. State, 34 Md. App. 365 , 367 A.2d 40 (1977). See also, Gilbert, "A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law,” 8 U. of Balt.

L. Rev. 183 (1979) . We have not deviated in the slightest from Siegel’s prescribed path. Whenever a pre-interception violation or violation committed during the course of the execution of the interception order, as distinguished from post-interception violations, has occurred, we have directed that the evidence derived from the legally faulty interception be suppressed. Md. Cts. & Jud.

Proc. Code Ann. (1980 Rep. Vol.) § 10-405; ³⁸⁰ Carter v. State, 274 Md. 411 , 337 A.2d 415 (1975) (construing the federal statute). The Maryland Wiretapping and Electronic Surveillance Law, Md. Cts. and Jud.

Proc. Code Ann. (1980 Rep. Vol.) §§ 10-401 — 10-412 is tailored along the lines of 18 U.S.C. §§ 2510-2520 (1976). The alterations to the federal act that were made by the General Assembly before enacting Md. Cts. and Jud.

Proc. Code Ann. (1980 Rep. Vol.) §§ 10-401 through 10-412 into law were obviously designed to afford to the people of Maryland a greater protection than Congress had provided in the Omnibus Crime Control and Safe Streets Act of 1968. 1 Because the drafters of the Maryland Act so carefully tracked the federal statute, 18 U.S.C. §§ 2510-2520 (1976), we look to court decisions interpreting that legislation for guidance in construing the Maryland statutory language. 2 The Court of Appeals, in Spease v. State, 275 Md. 88 , 338 A.2d 284 (1975), aff'g 21 Md. App. 269 , 319 A.2d 560 (1974), upheld a conviction based on evidence obtained as a result of a wiretap notwithstanding a post-interception violation of the federal act. This Court, in Poore v. State, supra, commenting upon Spease v. State, supra, noted that there is a vast difference insofar as the sanction for non-compliance is concerned between pre-interception violations 3 and post-interception violations. 4 The reason that the courts are more tolerant of non-compliance by the State with the post-intercept provision of the law is that those sections of the code, while important to the accused, are not vital to his Fourth Amendment rights.

Pre-interception violations, however, conflict with that Constitutional Amendment. At what point does a violation cease to be one of pre-interception and become that of post-interception? Neither the Court of Appeals nor this Court has heretofore expressly decided that question. Patently, if we apply the ³⁸¹ dictionary definition to pre-interception violations, then of necessity, the violation must occur before the interception has taken place.

Similarly, a post-interception violation could only occur after the interception has been made. Strict application of the terms pre-interception and post-interception creates a hiatus between the two. What then is the effect of a violation occurring within the gap? Are such violations free of sanction?

Manifestly, the answer to the latter question is a resounding NO, else the minimization requirements of both the federal act, 18 U.S.C. § 2518 (5) (1976) and that of the State, Md. Cts. and Jud. Proc. Code Ann. (1980 Rep. Vol.) § 10-408 (e), would be utterly meaningless.

See Scott v. United States, 436 U.S. 128 , 98 S. Ct. 1717 , 56 L. Ed. 2d 168 (1978); Poore v. State, supra, 39 Md. App. at 71, 384 A.2d at 119 . The tendency to sort all violations of the federal and State wiretap acts into the two categories — pre- and post-interception — ofttimes leads to a confusion in the terms. Just as square pegs do not fit into round holes, violations of the federal and State wiretap acts, occurring during the hiatus between pre- and post-interceptions, do not fit into either of these two classifications. The problem may be eliminated by viewing the wiretap electronic surveillance law, like all Gaul, "divided into three parts.” 5 The first part, known as the pre-intercept stage, requires, under Siegel and its progeny, strict compliance with the Md. Cts. and Jud.

Proc. Code Ann. (1980 Rep. Vol.) §§ 10-401 through 10-412. The second part may be characterized as the interception or on-going phase, at which time the law enforcement agency actually conducts the electronic interception of the communication.

The second phase also necessitates that there not be the slightest deviation from the letter of the act. The third part is stylistically known as the post-interception phase. It dictates what is to be done after the interception has been completed. Violation of the ³⁸² latter does not mandate suppression of the evidence derived from the interception, unless the party whose communication was intercepted can show that he has been prejudiced by the non-compliance with the statute.

Spease v. State, supra; Poore v. State, supra. 6 Thus, aware of P.I.P. — i.e., pre-interception, interception, and post-interception — we turn our attention to the instant case. — THE FACTS — During the month of June 1977, Special Agent Connell J. McGeehan of the Federal Drug Enforcement Administration (FDEA) received information from the San Diego, California office of the same federal agency that "a proven reliable Confidential Informant” had advised that a "HUGH BALDWIN, who resides on the Eastern Shore of Maryland was involved in illicit drug distribution . . . between Florida, Maryland, and the District of Columbia.” The information received through the informant was that Baldwin owned a glass company and a bar. Both businesses were allegedly used as a cover or front for the distribution of illegal drugs. Earlier, in August 1976, McGeehan had received information from the Montgomery County Police that Baldwin had purchased from the North Strong Chemical Company, Inc., of Rockville, Maryland, certain chemicals that, while not in themselves proscribed dangerous substances, could be used in the manufacture of Controlled Dangerous Substances (CDS). According to the Montgomery County authorities, Baldwin placed the chemicals in the trunk of his car.

Apparently, as a result of radio communication, the Baldwin vehicle was stopped by a member of the Washington, D.C. police department. A check of the operator license and registration established the identity of the person operating the vehicle as Hugh Hartman Baldwin of Chestertown, Kent County, Maryland. The Baltimore office of the FDEA notified McGeehan in December 1976 that a Hugh Baldwin of the Atlantic Glass Company, 22 Port Street, Easton, Maryland, had ordered a ³⁸³ five gallon container of phenyl magnesium bromide, a chemical used in the manufacture of CDS. Shortly afterwards, a surveillance of 22 Port Street was undertaken.

The five gallons of phenyl magnesium bromide were delivered to the Port Street address by Special Agent Rivera of the FDEA posing, by pre-arrangement, as an employee of a common carrier. Delivery was made to Alfred B. MacKown, Jr. 7 A continued "stake-out” of the Port Street property was rewarded when Baldwin, the morning of the day after the delivery of the five gallon container, was seen carrying the container and placing it in the trunk of a 1971 Pontiac. Baldwin then drove the vehicle, followed by an agent of FDEA, to a farm house in Queen Anne’s County. On July 22, 1977, McGeehan was advised that Baldwin had purchased chemicals from North Strong Chemical consisting of thirty gallons of benzene, twelve kilograms of piperidine and eighteen kilograms of cyclohexanone, four kilograms of phenyl acetone, all of which are used in the manufacture of CDS.

Additional chemicals were purchased in November and December, 1977 and February and March of 1978. The "majority of the chemicals . .. are known ... to be utilized in the production and/or manufacturing of . .. [CDS].” 8 Detective Barbara L. King of the Anne Arundel County Police Department learned on March 13, 1978, that one Brenda Head was to receive two to four pounds of phencyclidine (PCP) 9 from a person known as "Speedy.” Alfred MacKown was later determined to be "Speedy.” Because "Speedy” believed he was being followed the delivery was aborted. Subsequently, on March 16, Head met King and a confidential informant at the Oxbow Inn, which is located on Ritchie Highway. Head entered the vehicle ³⁸⁴ occupied by King and sold King a quarter pound of PCP for $425.

Head had at the time another one pound bag of PCP. The price for three-quarters of a pound was quoted as $1,225. The quarter pound purchased by King, as well as a quantity obtained from Head in a subsequent purchase, was analyzed at the Anne Arundel County Police Department Laboratory and determined to be PCP, a Schedule II CDS. See Md. Ann. Code art. 27, § 279(b)d.5.

"Speedy’s” address was ascertained to be 22 Port Street, Easton, Maryland. At that address the FDEA officers and the Maryland State Police (MSP) conducted "numerous intermittent stationary and mobile surveillances” 10 during the period of January 17, 1977 — April 3, 1978. As a result of telephone calls from Head to Atlantic Glass, King’s purchase of PCP from Head, the other purchase of PCP from Head, and Head’s advising King and another officer that she, Head, could only contact "Speedy” at the shop, together with "Speedy’s” address being the same as Atlantic Glass, the police believed the "shop” and Atlantic Glass were one and the same. The police then, through the State’s Attorney of Talbot County sought a wiretap on Atlantic’s telephone. * 11 The affidavit averred that "BALDWIN and MACKOWN have set up and have access to a clandestine laboratory used to manufacture ... [CDS].” The affidavit further asserted that a wiretap would enable the police to learn the identities of "persons as yet unknown who are conspiring to violate the ... [CDS] Laws ... as well as those persons ... [who obtain the CDS] for re-distribution to lower echelon persons .. . unknown.” The joint affiants 12 stated that from their experience and training they had "probable cause to believe” that Baldwin ³⁸⁵ and MacKown, Jr., wére "conspiring to manufacture and distribute .. . [CDS],.. .” The affidavits asseverated that without a wiretap they would be unable to learn "the identities and/or degree of participation of the 'higher-ups,’ and any co-conspirators....” The surveillance at Atlantic had failed to reveal the strong chemical odors normally associated with "Clandestine laboratories.” Normal police activity would, the affiants stated, "appear to be unlikely to succeed if tried or to be too dangerous to use....” The affidavit recited: "1.

Your co-affiants know from their past experiences, knowledge, and training that a 'blind buy’ (an attempt to purchase Controlled Dangerous Substances from a violator without prior introductions being made by anyone) would fail in an attempt to obtain evidence against ALFRED MACKOWN or HUGH HARTMAN BALDWIN JR. or to identify the 'higher-ups’ and/or co-conspirators due to statements made by BRENDA HEAD concerning MACKOWN [sic] being paranoid of strangers. 2. Your co-affiants, from past experience and knowledge as stated above, knows [sic] that other associates of ALFRED MACKOWN JR. and HUGH BALDWIN JR. cannot be approached to give information regarding their involvement in trafficking and manufacturing Controlled Dangerous Substances without the danger of them (associates) revealing the existence of the investigation. 3. Were a Search and Seizure Warrant to be obtained for the Atlantic Glass Company, 10 thru 22 Port Street, Easton, Talbot County, Maryland it is unlikely to succeed in showing either MACKOWN’S or BALDWIN’S total involvement in these illegal activities since it is unknown as to when MACKOWN or BALDWIN would be in ³⁸⁶ possession or [sic] large quantities of Controlled Dangerous Substances. Further, a Search and Seizure Warrant would not identify the source of supply or the location of a clandestine laboratory. 4.

Were the Court to only authorize a 'Pen Register’ device to be used, it would only allow your co-affiants to know telephone numbers which MACKOWN calls. It would not intercept pertinent conversations or identify the persons to whom MACKOWN or BALDWIN makes arrangements to manufacture, distribute and/or possess Controlled Dangerous Substances. 5. Your co-affiants from past experiences and knowledge, knows [sic] that the various kinds of investigative techniques described above as having tried and failed, appear unlikely to succeed to pinpoint the degree of participation in violations of the Controlled Dangerous Substance Laws by HUGH BALDWIN JR. and ALFRED MACKOWN JR. and the participation of others unknown, since the investigative techniques have produced little or no evidence up to this point despite the many hours spent on them. 6. Your co-affiants from past experience and knowledge know that other traditional methods of investigating have proven to be ineffective to apprehend persons involved in the above mentioned Controlled Dangerous Substance operation since the telephone itself in fact becomes an instrumentality of the crime.” The order authorizing the wiretap was issued, as we have previously observed, on April 13, 1978.

The issuing judge found probable cause to believe that the CDS laws of Maryland were being violated; that "normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried or to be too dangerous!;]” that evidence "leading to the solution of these crimes, [and] to the identity of’ others involved cannot otherwise be obtained. ³⁸⁷ The concluding paragraph of the interception order provided: "ORDERED that at present, the ... [MSP] shall be required to report to the Court on what progress has been made towards the achievement of the authorized objection and the need for continued interception at a time period and in a manner as designated by the Court.” Whatever was "designated by the Court” is not revealed by the record. Nevertheless, four unsigned "Status Report Record[s]” are in the record of the case. They bear dates of April 24, 1978, May 1, 1978, May 8, 1978, and May 16, 1978. 13 Because of their bearing on our discussion of the law, we quote the pertinent parts of each of those reports: "April 24, 1978 — 5:30 p.m. As the result of investigation conducted, no telephone conversations between ...

Baldwin Jr. and ... Mackown [sic] Jr. have occurred or monitored.... It appears that Baldwin and Mackown [sic] are meeting in person and not using the telephone.... No calls have been monitored which would lead to the location of a clandestine laboratory. [Of 245 telephone calls that were intercepted, four were 'related conversations.’]” "May 1, 1978 — 5:30 p.m.

The precursors order by Baldwin from the NorthStrong are not at the Chemical Company as yet.... Once the precursors arrive the investigation should progress. [458 telephone calls were intercepted, 11 were related.]” "May 8, 1978 — 5:30 p.m. [S]till no calls have been monitored between ... Baldwin Jr. and ... Mackown [sic] Jr. ... ³⁸⁸ [S]urviellance [sic] has indicated they are meeting in person at the Atlantic Glass Company.. .. [652 telephone calls intercepted, 14 related.]” "May 16, 1978 — 5:03 P.M. During the investigation the wire tap was terminated on May 16, 1978 at 3:57 P.M. Some of the related conversations obtained from the wire tap along with other information obtained from surveillances and investigation were used to obtain a Search and Seizure Warrants [sic] for . ..

Atlantic Glass ... and the farm house owned by ... Mackown [sic] Jr. During