Davis v. State

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. Where was the interception? In football, a quarterback, standing on his own ten-yard line, may direct a pass to his wide receiver on the forty-yard line. An intervening defensive back, however, with probable cause to anticipate the pass, may leap up and pull the ball out of the air at the thirty-yard line.

In the binary “either-or” world of football, the interception precludes the reception. In the multi-layered world of electronic surveillance, by contrast, the message may be received at its destination even as it is simultaneously intercepted in mid-flight. Our problem on this appeal is to pinpoint the legally significant spot at which an electro-magnetic transmission is effectively converted by the opposing team to its own use. Where, jurisdictionally, does the interception take place?

At the ten-yard line, the thirty-yard line, the forty-yard line, or at all three places at once? On the other hand, does such a question even make sense? May valid analogies be drawn between a tangible actuality such as a football and an intangible concept such as communication? Is intercepting the opposing quarterback’s pass at all analogous to aiming a parabolic microphone at him to intercept his signal calling?

Analogies, at the very least, will be highly strained. Possession With Intent to Distribute The appellant, Tyrone Davis, was found guilty in the Circuit Court for Montgomery County by Judge Terrance J. McGann, sitting without a jury, of the possession of marijuana with the ²⁷⁶ intent to distribute. He was sentenced to five years imprisonment. After his pretrial motion to suppress evidence because of an alleged violation of the Maryland Wiretapping and Electronic Surveillance Act had been denied by Judge Michael J. Algeo, the appellant proceeded to trial on an agreed statement of facts, preserving his right to appeal from the denial of his suppression motion.

A Solitary Contention The appellant’s single contention is that the Montgomery County Police violated Maryland Code, Courts and Judicial Proceedings Article, § 10-408(c)(3) when they “intercepted a phone call made by the appellant in Virginia from a Virginia phone to a Virginia phone line while the call’s recipient was in Virginia” and that, as a result, not only the contents of the extraterritorial interception but all derivative evidence flowing therefrom must be suppressed pursuant to § 10-405. The Year of Decision: 1967-68 Some brief background is necessary to give context to the contention. In 1967, the United States Supreme Court, in Berger v. New York, 388 U.S. 41 , 87 S.Ct. 1873 , 18 L.Ed.2d 1040 , gave off ominous warnings that state statutes authorizing the investigative use of either wiretapping or electronically enhanced eavesdropping, at least as most of those state statutes then stood, might fail to pass Fourth Amendment muster. The typical state statute, it was strongly suggested, would have difficulty in satisfying, inter alia, the Fourth Amendment’s probable cause requirement, its particularity requirement, and its minimization requirement.

The very length of the routinely authorized eavesdropping or wiretapping, the Supreme Court intimated, might turn a single warrant, in effect, into a series of open-ended general warrants. Within six months of the Berger decision, Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), confirmed that the Fourth Amendment applies to the seizure of intangible conversation even without the necessity of some physical intrusion into a protected area, as Katz overruled in that ²⁷⁷ regard both Olmstead v. United States, 277 U.S. 488 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129 , 62 S.Ct. 993 , 86 L.Ed. 1322 (1942). Both to effectuate, completely and immediately, the protections that were the concern of Berger and Katz , but also to preserve wiretapping and electronic eavesdropping as effective law enforcement weapons, when properly constrained, Congress enacted “Title III” of the Omnibus Crime and Safe Streets Acts of 1968, now codified as 18 U.S.C., § 2510-2521 . Title III is a comprehensive scheme setting out in meticulous detail the careful steps that must be taken by law enforcement officials before a judge will authorize a wiretap or the use of a “bugging” device.

Title III also provided that the use of either technique by state law enforcement would be, ipso facto, illegal unless the state in question enacted its own implementing statute, fully satisfying all of Title Ill’s requirements. The implementing state statute could be more protective of citizens’ rights than Title III, but it could never be less so. Judge Digges described the new dispensation for the Court of Appeals in State v. Mayes, 284 Md. 625, 627-28 , 399 A.2d 597 (1979): [T]he Congress insured that a uniform national standard would govern the use of electronic surveillance by including within Title Ill’s provisions standards for the use of wiretaps that the states, if they chose to allow their law enforcement officials to undertake such surveillance, must, at a minimum, comply with but which they may, if they desire, make more restrictive. (Emphasis supplied).

Maryland Followed Suit: 1977 By ch. 692, sec. 3, of the Acts of 1977, Maryland enacted an implementing statute, now codified in Courts and Judicial Proceedings Article, §§ 10-401 through 10-414. As Chief Judge Robert Murphy noted in Mustafa v. State, 323 Md. 65, 69 , 591 A.2d 481 (1991): ²⁷⁸ The Maryland Act was modeled on the federal act and closely tracks its provisions; however, the Maryland legislature has made some of the provisions of the State Act more restrictive than the federal law. (Emphasis supplied). See also Wood v. State, 290 Md. 579, 583 , 431 A.2d 93 (1981); State v. Baldwin, 289 Md. 635, 641 , 426 A.2d 916 (1981); State v. Bailey, 289 Md. 143, 151 , 422 A.2d 1021 (1980); Howard v. State, 51 Md.App. 46, 48-49 , 442 A.2d 176 (1982); Richard P. Gilbert, “A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law,” 8 U. Balt.

L.Rev. 183 (1979). The Maryland Act followed the federal act, and with two exceptions, is essentially indistinguishable from it. Bailey, 289 Md. at 151 , 422 A.2d 1021 (“The Maryland Wiretapping and Electronic Surveillance’ law is an offspring of the Omnibus Crime Control and Safe Streets Act of 1968 ... commonly called Title III.”); Adams v. State, 289 Md. 221, 223 , 424 A.2d 344 (1981) (the Maryland Act “tracks extensively Title III”); Mustafa, 323 Md. at 69 , 591 A.2d 481 ; Standiford v. Standiford, 89 Md.App. 326, 333-34 , 598 A.2d 495 (1991) (“The Act is an offspring of, and closely parallels, Title III of the Omnibus Crime Control and Safe Streets Act of 1968[.]”). In Fearnow v. Chesapeake & Potomac Telephone Co. of Md., 104 Md.App. 1, 32 , 655 A.2d 1 (1995), rev’d on other grounds, 342 Md. 363 , 676 A.2d 65 (1996), Judge Harrell wrote for this Court: It is clear through both legislative history and case precedent that the federal wiretap statute ... served as the guiding light for the Maryland Act.

Therefore, we read the acts in pari materia, so as to obtain the legislative intent of the language. (Emphasis supplied; citations omitted). In Adams v. State, 43 Md.App. 528, 535-36 , 406 A.2d 637 (1979), aff'd, 289 Md. 221 , 424 A.2d 344 (1981), Judge Chasanow pointed out the two minor respects in which the Maryland law is more restrictive than its federal counterpart. Under the federal law, an interception will be lawful if either party to a conversation consents to its being overheard and recorded. ²⁷⁹ In Maryland, by contrast, such an interception is lawful only if both parties give consent.

See Mustafa v. State, 323 Md. 65 , 591 A.2d 481 (1991). The distinction is between one-party consent and two-party consent. The closely related second distinction is that in Maryland one-party consent, as an exception to the general Maryland rule, may be enough for the investigation of certain specially designated crimes. Under Title III, one-party consent will always be sufficient no matter what the crime.

In that regard, Adams, 43 Md.App. at 537 , 406 A.2d 637 , observed: Because the federal statute is identical to our own in the critical sections defining “intercept” and “electronic, mechanical, or other device” ... we may turn to the federal courts for guidance. (Emphasis supplied). In almost every other respect, the two acts essentially track each other. In Baldwin v. State, 45 Md.App. 378, 380 , 413 A.2d 246 (1980), aff'd, 289 Md. 635 , 426 A.2d 916 (1981), Chief Judge Gilbert observed: Because the drafters of the Maryland Act so carefully tracked the federal statute ... we look to court decisions interpreting that legislation for guidance in construing the Maryland statutory language.

(Emphasis supplied). Because of the massive similarity between Title III and its Maryland offshoot, the fact that the two statutes are not verbatim clones of each other should not be exaggerated, as the appellant seeks to do in this case. The overriding characteristic is their similarity, not their dissimilarity. Title III is an invaluable aid to the statutory interpretation of the Maryland act, and it is a disservice to suggest otherwise.

Judge Harrington’s Interception Order On September 8, 2006, Judge Ann S. Harrington in the Circuit Court for Montgomery County signed an order authorizing officers of the Montgomery County Police Department, along with officers of the United States Drug Enforcement ²⁸⁰ Administration as well as officers of “any other jurisdictions ... working with and under the direction of’ the Montgomery County officers, to intercept pertinent outgoing and incoming calls on “cellular telephone 757-358-1554.” The order recited that cell phone “is currently being used by Tyrone Davis,” the appellant. Although the phone number had originally been subscribed to by the appellant, then listing his address as 1305 Bethel Avenue in Hampton, Virginia, Judge Harrington’s order recited that the appellant was then living at 14112 Grand Pre Road in Silver Spring, Maryland. Based upon the information provided by the application for the interception order and its accompanying affidavits, the order further recited: The cellular telephone 757-358-1554 is known to be used in Montgomery County, Maryland and therefore, and for this and other reasons set forth in the attached affidavit, the applicants believe the events being investigated are occurring within the jurisdiction of Montgomery County, Maryland. (Emphasis supplied).

Because of the mobility of cellular telephones, Judge Harrington’s order conferred wide authority on the officers in the execution of the interception: ORDERED that the facility from which the described communications are to be intercepted is cellular telephone line 757-358-1554, which is operated on the equipment and infrastructure maintained by T-Mobile USA. This Order applies not only to telephone number 757-358-1554, but to any changed telephone number(s) or telephone(s) that are subsequently accessed through the aforementioned international Mobile Subscriber Identity (IMSI) 31026011396000, and also to any subsequent IMSI utilized by the telephone number 757-358-1554[.] An apparently exhaustive list of cellular phone service providers — including Sprint/Nextel, Cingular Wireless, Verizon Wireless, and T-Mobile USA — were ordered to provide a wide variety of information in any way connected to cellular phone 757-358-1554 “unlimited geographically.” Precise positioning ²⁸¹ information with respect to the appellant’s cell phone was ordered to be provided “without geographic limit.” ORDERED that T-Mobile USA, upon request, produce precise positioning information without geographic limit, subscriber listing/billing information, cell detail records including incoming and outgoing caller identification unlimited geographically, and cellular site identification unlimited geographically for the target number 757-358-1554 for the duration of this order[.] (Emphasis supplied). An En Route Interception It is not disputed that the covert listening post from which the police were monitoring the appellant’s cell phone was located somewhere in Montgomery County. The interception now in dispute was made at 11:30 P.M. on September 11, 2006.

The call was made by the appellant on cell phone line 757-358-1554. Although the content of the call was relatively inconsequential in terms of the ultimate trial merits of guilt or innocence, it could reasonably be inferred that the appellant, as he made the call, was headed home to Montgomery County after having made a drug pick-up in Miami. In proceeding north from Miami, the appellant’s probable location in northern Virginia at the time of the call was established by the following telephonic exchange: Unidentified Speaker: Oh, man. You are up in D.C. ?

Mr. Davis: On my way back there now. Unidentified Speaker: Oh. You ain’t pass Richmond and shit? Mr. Davis: Yeah, I’m like, I’m like SO miles from D.C. Unidentified: Oh, man.

Shit. (Emphasis supplied). The significance of the intercept was that it gave the law enforcement team the probable cause it needed for the war-rantless detention and questioning of the appellant as he arrived home in Montgomery County at approximately 12:30 ²⁸² A.M. on September 12, about one hour after the call had been intercepted. A Suitcase Full of Derivative Evidence As otherwise substantively inane as the appellant’s phone call to his friend somewhere in Virginia may have been, it gave the investigating interceptors probable cause to believe that he would be arriving in Silver Spring within the hour and would be carrying a load of contraband drugs from Miami.

Accordingly, the welcoming committee was on hand as he pulled into his parking space in front of 14112 Grand Pre Road shortly after midnight. Although the search of the appellant himself and of his car yielded nothing, the suitcase being carried by the appellant was found to be packed with high-grade marijuana. That marijuana was central to the State’s proof of the appellant’s possessory guilt. That marijuana was the subject matter of the suppression motion before Judge Algeo, as the derivative fruit of the allegedly illegal cellular telephone intercept.

Derivative evidence, as surely as direct evidence, is suppressible pursuant to the statutory exclusionary rule of § 10-405. Judge Algeo found that there was no violation of the Maryland Wiretapping and Electronic Surveillance Act and denied the motion to suppress. This appeal is from that finding and ruling. A Threshold Issue: A Cell Phone Intercept Is Not A Wiretap In Miles v. State, 365 Md. 488 , 781 A.2d 787 (2001), Judge Battaglia raised what, at first blush, could be a very intimidating question.

It is a question not alluded to by either party. It is that of whether the Maryland Act even applies to the interception of a communication between, as in this case, one cell phone and another. The answer is, “Yes, it does.” That answer, however, is by no means an automatic ipse dixit. Judge Battaglia posed the issue, 365 Md. at 510 , 781 A.2d 787 , that was then arguably before the Court of Appeals: ²⁸³ The issue of whether a cellular phone call is protected under the Maryland Wiretapping Statute is a matter of first impression.

It was ultimately unnecessary for the Court of Appeals to decide whether a communication between one cell phone and another would be covered by the Maryland Wiretapping Statute, because one end of the line of communication in that case was anchored to a landline. The defendant, from a cell phone in his car, had called his wife at her land-based phone at home. The link-up between the cellular transmission and the landline was important to the Court’s analysis, 365 Md. at 510-11 , 781 A.2d 787 . Finding that the act applied, the Court went on to consider whether it had been violated.

Because we have determined that cellular phone communications with land phones are protected under the Maryland Wiretapping Act, we must address the existence and extent of any violations of the statute by the Maryland State Police requiring exclusion of the taped cellular phone conversation and any “evidence derived therefrom.” 365 Md. at 512 , 781 A.2d 787 (emphasis supplied). Because the intercepted communication before us was not necessarily anchored by a landline, the issue of cell phone coverage remains for us one of first impression. Both the original Title III of 1968 and the original Maryland Wiretapping Act of 1977 were significantly more narrow in their coverage than are the two statutes today. They dealt with traditional wiretapping and with electronic “bugging” and not with the use of cellular phones, a much newer technology that had not yet captured the popular fancy nor overwhelmed the consumer market, as it subsequently has.

Wiretapping is a technique to intercept a message between Phone A, located in a fixed place, and Phone B, also located in a fixed place and connected to Phone A by a wire, a landline, either running through an underground cable or looped from telephone pole to telephone pole. At some place along that wire, the eavesdropper would physically plug in with a listening device or a wire proceeding to a listening device. That ²⁸⁴ investigative technique does not have anything to do with the use of cell phones. One cannot wiretap unless there is a wire to be tapped.

The definition of “wire communication” in § 10-401(1) of the Maryland Act, essentially verbatim with the same definition in federal Title III, states: (1) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a connection in a switching station) furnished or operated by any person licensed to engage in providing or operating such facilities for the transmission of communications. (Emphasis supplied). In that simple linear world, an understanding of the location of the interception point required little more than a knowledge of plane geometry. The other original prohibition, in both acts, was on the use of miniaturized listening devices or “bugs” that could surreptitiously be hidden in the home, office, car, or pocket of the suspect in order to pick up conversation and transmit it to a nearby listening post.

The listening device does not intercept communications. It is simply a “hidden ear” picking up sound in a room or other place. It could pick up the private thoughts, or even the prayers, of a solitary suspect, provided only that those thoughts or prayers were spoken aloud. Analytically, this entire investigative modality should probably be located in some different statute, along perhaps with the use of hidden cameras, rather than in an anti-wiretapping statute.

In the immediate excitement of Katz v. United States (1967), however, the two techniques were joined together in Title III. Analytically, it is a mesalliance but, for better or for worse, the two investigative partners are now joined together. The Maryland definition in § 10-401(2), again following an indistinguishable definition in Title III, simply states: (2) “Oral communication” means any conversation or words spoken to or by any person in private conversation. ²⁸⁵ The action clause of § 10-402(a)(l), again tracking the federal original, simply provides, in pertinent part: [I]t is unlawful for any person to: (1) Wilfully intercept ... any wire or oral communication. Neither the original Title III nor the original Maryland Wiretapping Act, on the other hand, covered communications between cellular phones.

Such expanded coverage would not, indeed, follow until 1986 on the federal side, or until 1988 on the Maryland side. In Bartnicki v. Vopper, 532 U.S. 514, 524 , 121 S.Ct. 1753 , 149 L.Ed.2d 787 (2001), Justice Stevens described the time and the substance of the enhanced coverage: As enacted in 1968, Title III did not apply to the monitoring of radio transmissions. In the Electronic Communications Privacy Act of 1986, 100 Stat. 1848 , however, Congress enlarged the coverage of Title III to prohibit the interruption of “electronic” as well as oral and wire communications. By reason of that amendment, as well as a 1994 amendment which applied to cordless telephone communications, 100 Stat. 4279 , Title III now applies to the interception of conversations over both cellular and cordless phones.

(Emphasis supplied). Maryland followed the federal lead by enacting ch. 607 of the Acts of 1988. To the definitions in § 10-401, which already included “wire communication” and “oral communication,” Maryland, again following Title Ill’s example, added as § 10-401(11) a definition of “electronic communication”: (11)(i) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system. Whereas § 10-402(a), the operational criminalizing provision, had originally only prohibited the interception of wire and oral communications, it now added, again following Title III’s example, “electronic communication” to the protective coverages: ²⁸⁶ (a) Unlawful acts. — Except as otherwise specifically provided in this subtitle it is unlawful for any person to: (1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication[.] (Emphasis supplied).

It was necessary to add “electronic” to § 10-402(a) because a cellular communication is neither a “wire communication” nor an “oral communication” and, therefore, was not covered by the existing law. Although it did not do so until 1988, § 10-402 now clearly covers communications involving cellular phones. 1 The law, as amended in 1988, therefore covers the present case. When the whole phenomenon of electronic surveillance was brought under the scrutiny of Title III for the first time in 1986 and then under the scrutiny of the Maryland law for the first time in 1988, it was no mere variation on the familiar theme of wiretapping. It was a totally new and distinct field of coverage with its own unique characteristics and its own procedural demands.

There are necessarily variations in how the law applies to intercepts on cellular phones because the underlying physics is dramatically different. One may not take a cell phone which is not on a landline and is not vulnerable to a traditional wiretap and treat it as if it were. One should, therefore, take any opinions that do so and politely throw them out as worthless, if not affirmatively misleading. The interception of cell phone communications is in a class by itself.

The Location of the Other End Of the Line Is Immaterial The appellant makes much of the fact that when he, northbound through Virginia, made his call at 11:30 P.M., the call was made “to a Virginia phone line while the call’s recipient ²⁸⁷ was in Virginia.” It was, indeed, stipulated that the recipient of the call was in Virginia, “away at college in Virginia,” at the time the call from the appellant was made. Such a fact, however, is utterly beside the point. That the call was received in Virginia would not serve in any way to invalidate Judge Harrington’s jurisdictional authority. Conversely, had the call been received in Maryland, that would not confer jurisdiction if it were not otherwise present.

Neither Title III nor the Maryland Wiretapping and Electronic Eavesdropping Act is concerned, at the authorizing threshold, with whither suspect calls go or whence they come. The legitimacy of the intercept does not depend on whether the incriminating message is on its way to Bogota or to Bethesda. Conversely, the entitlement to intercept is indifferent to whether an inculpato-ry message is inbound from Macao or from Mt. Airy.

In terms of proving guilt, on the other hand, that is an entirely different story. The critical situs at which an interception occurs may be at either or both of two places: 1) where the suspect phone which is the subject of the interception order is located, regardless of whether that phone is sending a message or receiving a message; and 2) where the police are located as they monitor and hear the intercepted message, to wit, the location of the “listening post.” The judge who issues the interception order must have jurisdictional authority over at least one of those two places as well as over the place where the crime has occurred and is to be prosecuted. The other end of the line, on the other hand, wherever it may be, has nothing to do with the issue of jurisdiction. If the appellant were right that the location of the other end of the line had jurisdictional significance, we would dread to contemplate the implications of intercepting a conference call.

What Does the Modifying Phrase Modify? It is the appellant’s contention, however, that, under a more restrictive Maryland law as opposed to the laxer federal law, jurisdictional authority over the situs of the listening post will not suffice to confer jurisdiction over the interception. ²⁸⁸ The appellant contends that an interception is unauthorized under Maryland law unless the suspect phone itself, at the precise moment of the interception, is physically located within the State of Maryland. You must turn off the listening device, the appellant maintains, as the phone crosses the line. It is a clever argument, but it hangs on the single four-word modifying phrase, “anywhere within the State.” The critical question becomes, “What does that modifying phrase modify?” The appellant insists that it modifies the suspect phone, to wit, “a communication device,” that must, at the moment of the interception, be located “anywhere within the State.” The counter-interpretation is that it modifies “the interception of communications” that may now, post a critical 1991 amendment, occur “anywhere within the State.” Section 10-408(c)(3) reads: (3) If an application for an ex parte order is made by the Attorney General, the State Prosecutor, or a State’s Attorney, an order issued under paragraph (1) of this subsection may authorize the interception of communications received or sent by a communication device anywhere within the State so as to permit the interception of the communications regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed at the time of the interception.

The application must allege that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed. (Emphasis supplied). It is the appellant’s argument that the phrase “anywhere within the State” modifies “a communication device,” the noun phrase that immediately precedes the modifying phrase in question. The only communications that could ever be intercepted, pursuant to that argument, would be “communications received or sent by a communication device anywhere within the State.” (Emphasis supplied).

A clever suspect who carefully carries his cell phone across a state line before making a call would be forever immune from home-state interception. ²⁸⁹ A drug courier traveling the 1-95 corridor between New York and Washington, passing through four or five states en route, would enjoy similar immunity. Jurisdictional authority over wiretapping and electronic surveillance would be tied to the random physical location of a moving cell phone and not to the broader concept that includes the location of the interception. The appellant, in urging this interpretation, would have us look at what is now § 10 — 408(c)(3) in a vacuum. A resolution of the interpretive problem, however, requires us to stand back and look at the design and framework of the Maryland Wiretapping and Electronic Surveillance Act as a whole.

That law is divided into fourteen sections: Courts and Judicial Proceedings Article, §§ 10-401 through 10-414. Sections 10-409 through 10-414 need not concern us. 2 Section 10-401 provides 18 pertinent definitions. Section 10-403 deals with the manufacture, possession, and sale of intercepting devices. Section 10-404 concerns the forfeiture of intercepting devices illegally possessed.

Section 10-405 is the statutory exclusionary rule for violations of the act. 3 Section 10-406 specifies those officials who may apply for an interception order. Section 10-407 regulates the lawfulness of disclosing the contents of intercepted communications. The interpretive problem now before us boils down to just two sections of the law. Section 10-402 is the key operational section of the entire Wiretapping and Electronic Surveillance law.

It is § 10-402 that makes certain intercepts lawful and other intercepts unlawful. It is § 10-402 that provides the ²⁹⁰ penalty for a violation of the act. Significantly, the ostensibly limiting language being urged upon us by the appellant is not to be found anywhere in § 10-402. It is § 10-408 that deals 1) in subsection (a) with the required contents of an application for an interception; and 2) in subsection (c) with the authority of a judge to issue an order to intercept.

It is quintessential^ procedural. Prior to being amended by ch. 285 of the Acts of 1991, subsection (c) denied a judge the authority to order an intercept outside of the judge’s county or judicial circuit. All