Derry v. State

RAKER, Judge. In this case, we must decide whether the State possesses the authority to file an interlocutory appeal of a trial court’s decision to suppress the tape-recording of a conversation where the court based its suppression upon a violation of § 10-411(c) of the Maryland Wiretapping and Electronic Surveillance Act. 1 We shall hold that the State enjoys no such right. I. A. On June 12, 1978, the lifeless body of Mark Stephen Schwandtner was discovered in the Gunpowder River near ³²⁸ Jones Road in Baltimore County. Exactly seventeen years and nine months later, on March 12, 1996, the Grand Jury for Baltimore County indicted Petitioner, John Derry, along with three co-defendants, on charges of murder, kidnaping and conspiracy to commit murder in connection with Schwandtner’s apparent homicide.

At the close of a suppression hearing held prior to trial, the Circuit Court for Baltimore County granted Petitioner’s motion to exclude evidence of an audio-cassette recording of a February 4, 1996 conversation between himself and a police informant based upon the court’s finding that the recording equipment used by the informant was never affixed with a State Police registration number pursuant to § 10-411(c). 2 The relevant facts adduced at the suppression hearing follow. During 1995, the Federal Bureau of Investigation was using one Charles Wilhelm as a paid informant in a number of federal criminal investigations. In the course of those investigations, Wilhelm provided the F.B.I. with information implicating himself and Petitioner in a 1978 homicide in Baltimore County. The federal agents contacted Detective Michael Downes, a Baltimore County Police Officer assigned to work with the F.B.I., and apprised him of the information they had received.

In an effort to obtain more information about the homicide, law enforcement officials decided to intercept and ³²⁹ record certain conversations between Derry and Wilhelm. Accordingly, on December 22, 1995, Baltimore County Police executed a written agreement with Wilhelm in which the latter agreed to participate in and assist with the investigation of the 1978 homicide. Sometime before Wilhelm conducted the interceptions, Detective Downes contacted the Baltimore County State’s Attorney’s Office to ensure compliance with the Maryland wiretap provisions. He was advised that any recording equipment to be used in connection with the investigation should be registered with the Maryland State Police.

To this end, he contacted Detective Jack Cover, a member of the Baltimore County Police Department’s Intelligence Unit and the officer responsible for completing the registration of the Department’s wiretapping and electronic surveillance equipment pursuant to § 10-411. Cover told Downes that he “should get the serial numbers, model numbers off the equipment to be used and give it to him and have him register the equipment, as is his duty, with the State Police.” Although the F.B.I. owned the recording equipment that was to be used to investigate Petitioner’s role in the 1978 homicide, it was Wilhelm who retained possession of the individual devices, since he had been using them in connection with his participation in the federal investigations. Some time in mid-January, 1996, the F.B.I. agreed to provide the manufacturers’ serial numbers needed to identify and register the individual devices with the Maryland State Police. On January 15, 1996, the F.B.I. informed the Baltimore County Police Department of the serial numbers associated with the electronic recording equipment Wilhelm was using.

Detective Downes immediately contacted Detective Cover and asked him to register four pieces of equipment: “a large recorder, ... a Panasonic video camera and the ensuing recording device, and ... a small mini-cassette, Panasonic, that Mr. Wilhelm had on his person.” 3 That same day, Detective Cover told Detective ³³⁰ Downes that the equipment had been registered, effective January 15,1996. At some point during the ensuing weeks, F.B.I. technicians installed a video camera and VCR recorder, two of the recording devices registered by Detective Cover, in the back of a sub shop owned by Wilhelm in order that he might intercept and record a meeting arranged with Derry for February 3, 1996. According to plan, Wilhelm video-taped that meeting himself, by means of a remote control device that he kept on his person. The following day, Wilhelm tape recorded a second conversation with Derry during a get-together in Wilhelm’s home.

It was during that conversation, on February 4, 1996, that Petitioner allegedly confessed to his involvement in the 1978 murder. 4 The device used by Wilhelm to intercept and record this crucial communication was the Panasonic Recorder, Model Rn 36, that Wilhelm had kept hidden in his pocket during the conversation. Again, the micro-cassette recorder used on February 4th to record Petitioner’s admissions had been registered with the State Police as of that date. Petitioner moved to suppress, contending that the issued serial number for the registered device had never been “affixed or indicated” on the device in question within the meaning of § 10-411(c). 5 ³³¹ B. The trial court granted Petitioner’s motion to suppress the February 4, 1996 recording, ruling as follows: Obviously, to me, sure, there was a serial number on the equipment. It was the manufacturer’s serial number.

It is not the number contemplated by the statute, and that, I think, is what turns the trick in favor of the defendant. There is no way that that equipment was ever marked with the Maryland State Police issued number BA1786. It was never affixed to the item of equipment, nor as far as I know, any of the other equipment. So it seems to me it is absolutely fatal to the State’s introduction of this tape.

It doesn’t come in. It passes on every other standard, every other question we examined it on, but it doesn’t come in because it was not registered pursuant to 10-411, Sub-section C, end of case.[ 6 ] The State filed an interlocutory appeal to the Court of Special Appeals, invoking § 12—302(c)(3) as its authority to do so. 7 Whether the State had the right to file such an appeal ³³² under Maryland law was not argued by either party before the intermediate appellate court, nor did the court, in its unreported opinion, address the issue in any other way than to acknowledge that the State’s appeal was interlocutory, along with a footnote citing to and quoting § 12-302(c)(3). The Court of Special Appeals held that the resolution of the State’s appeal of the trial court’s grant of suppression was controlled by Battaglia v. State, 119 Md.App. 349 , 705 A.2d 36 (1998), a decision unavailable to the Circuit Court at the time of its ruling. 8 The Battaglia court had determined that the registration requirement outlined in § 10-411, as the State contends, is a provision intended to facilitate administrative goals. We find nothing within the legislative history or the language of the Act to indicate that the General Assembly intended violations of this provision to result in ³³³ the suppression of evidence.

Therefore, the State was not required to prove that the device was registered, and the trial court did not err in admitting the evidence. It goes without saying that every device obtained to intercept and record wire, oral, and electronic communications is to be registered pursuant to Maryland law. Whether the device was registered, however, does not affect the admission of the recorded communication as evidence. Admissibility is governed by § 10-408.

Thus, because the registration requirement does not affect the admission of evidence, the party seeking to introduce the recording is not required to prove the device is registered pursuant to § 10-411 before having the recording admitted into evidence. Id. at 356, 705 A.2d at 39-40 . In direct reliance on Battaglia , the Court of Special Appeals rejected Petitioner’s claim that the cassette recording of his February 4, 1996 conversation with Wilhelm was suppressed correctly by the trial court based upon the State’s failure to comply with the affixation requirement of § 10-411(c). Accordingly, the court reversed the trial court’s judgment, ruling that “[u]nder Battaglia , the recording of [DerryJ’s conversation is admissible.” We granted Derry’s petition for certiorari, which presented the following question: Did the suppression court correctly grant Derry’s motion to suppress a tape recorded conversation based on its finding that the device used for the interception and recording was not properly registered in compliance with Section 10-411 of the Courts and Judicial Proceedings Article?

After oral argument before this Court and subsequent to our initial conferencing of the suppression issue upon which we granted certiorari, it became clear that there was a genuine issue as to whether the State is authorized to appeal the suppression of an intercepted communication at an interlocutory stage of the trial proceedings where the suppression was ordered pursuant to the Maryland Wiretapping and Electronic Surveillance Act (hereinafter referred to by its full name, or “the Wiretap Act,” “the Maryland Act,” or “the Act”). That ³³⁴ this issue had not yet been raised or argued during judicial review of the present case was of no weight given that the existence vel non of the State’s right of appeal directly involves the subject matter jurisdiction of the Court of Special Appeals in hearing and deciding this case in the first place. As we stated in Stewart v. State, 287 Md. 524, 527-28 , 413 A.2d 1337, 1339 (1980), “the lack of [subject matter] jurisdiction may be raised at any time, including initially on appeal.” Moreover, the issue of subject matter jurisdiction need not be raised by a party, but may be raised by a court sua sponte. See Duffy v. Conaway, 295 Md. 242 , 254-55 n. 8, 455 A.2d 955 , 961 n. 8 (1983) (reiterating that subject matter “jurisdiction is a matter which, if noticed, will be addressed by a court even though it was not raised by any of the parties” (citing Biro v. Schombert, 285 Md. 290, 293 , 402 A.2d 71 (1979); Smith v. Taylor, 285 Md. 143, 147 , 400 A.2d 1130 (1979); State v. McCray, 267 Md. 111, 126 , 297 A.2d 265 (1972))).

We therefore rescheduled this case for supplemental briefing and reargument by Petitioner and the State concerning the following question: Whether the State is authorized under the language of Maryland Code (1974, 1998 Repl.Vol.), Section 12-302(c)(3) of the Courts and Judicial Proceedings Article, or under any other law, to appeal from an order of a circuit court, entered pursuant to Sections 10-405 and l(M08(i) of the Courts and Judicial Proceedings Article, suppressing the contents of a wire, oral, or electronic communication on the ground that the communication was intercepted in violation of the Maryland Wiretapping and Electronic Surveillance Act? If the answer to this question is negative, the Court of Special Appeals lacked jurisdiction over the instant case. The consequences of such would be that our grant of certiorari would be rendered improvident and that we would be compelled to dismiss the present appeal.

II

With the refocusing of our inquiry upon the threshold issue of appellate subject matter jurisdiction, the case before ³³⁵ us essentially boils down to a question of statutory interpretation involving two separate provisions of the Courts and Judicial Proceedings Article, namely § 10-408(i) within the Wiretap Act, and § 12-302(c). 9 Of utmost importance is the fact that the Circuit Court’s order of suppression was grounded solely upon the Wiretap Act. Although, as noted earlier, Petitioner offered other bases for his motion to suppress, including some constitutional claims, the suppression hearing focused entirely upon the statutory provisions under the Act. Again, however, the State did not rely upon the Wiretap Act in filing its interlocutory appeal of the suppression court’s decision, but instead invoked § 12-302(c). As this Court repeatedly has made clear, the paramount goal of statutory interpretation is to identify and effectuate the legislative intent underlying the statute(s) at issue.

See Robinson v. State, 353 Md. 683, 694 , 728 A.2d 698, 703 (1999); Blondell v. Baltimore Police, 341 Md. 680, 690 , 672 A.2d 639, 644 (1996). The legislative intent of a statute primarily reveals itself, through its very own words. See Harris v. State, 353 Md. 596, 606 , 728 A.2d 180, 184 (1999); Marriott Employees v. MVA, 346 Md. 437, 444-45 , 697 A.2d 455, 458 (1997). As a rule, we view the words of a statute in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood.

See Sacchet v. Blan, 353 Md. 87, 92 , 724 A.2d 667, 669 (1999); Whack v. State, 338 Md. 665, 672 , 659 A.2d 1347, 1350 (1995). If the words of a statute clearly and unambiguously delineate the legislative intent, ours is an ephemeral enterprise: we need investigate no further but simply apply the statute as it reads. See Marriott Employees, 346 Md. at 445 , 697 A.2d at 458 . ³³⁶ Even so, we do not view the plain language of a statute in a vacuum. As we have often reiterated, While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body.

The Court will look at the larger context, including the legislative purpose, within which statutory language appears. Degren v. State, 352 Md. 400, 417 , 722 A.2d 887, 895 (1999) (quoting Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590, 594 (1992) and omitting citations). Our construction of the two statutes involved in the present case need not venture far beyond their text. Despite a theoretically arguable ambiguity in one of the statutes, we believe the plain language of each unmistakably manifests its legislative intent.

Both Petitioner and the State acknowledge that although the Wiretap Act expressly allows for the exclusion of evidence, see §§ 10-405 and 10-408(i), it provides no right of appeal of a trial court’s decision on a motion to suppress. The only explicit provision for an appeal under the Act states, In addition to any other right to appeal, the State shall have the right to appeal from, the denial of an application for an order of approval, if the prosecuting attorney shall certify to the judge or other official denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted. § 10—408(i)(3) (emphasis added). The Act thus lacks any express provision authorizing the State to appeal a trial court’s grant of suppression pursuant to §§ 10—408(i)(l) and (2). 10 See Mossburg v. Montgomery County, 329 Md. 494, 505 , ³³⁷ 620 A.2d 886, 892 (1993).

(“This Court has regularly held that where the Legislature in a statute expressly authorizes a particular action under certain circumstances, the statute ordinarily should be construed as not allowing the action under other circumstances.” (Citations omitted)). Nor could such a right of appeal reasonably be implied in light of certain legislative history leading up to the Wiretap Act’s original passage in 1977. At one point during its drafting, § 10—408(i)(3) included the following provision: “[T]he State shall have the right to appeal from an order granting a motion to suppress made under paragraphs (1) and (2) of this subsection, or the denial of an application for an order of approval.... ” The italicized text, however, was excised entirely from the statute before its enactment. See 1977 Laws of Maryland, Ch. 692, § 3, at 2815.

Hence, its explicit language and the unmistakable intention implicit in its legislative history irrefutably indicate that § 10—408(i) of the Wiretap Act in no way enables the State to appeal immediately the suppression of evidence based thereunder. Unfortunately for the State, it can fare no better under § 12-302(c)(3) which empowers the State to file an interlocutory appeal of a trial court’s grant of a motion to suppress evidence, yet only in certain criminal cases and under strictly ³³⁸ limited circumstances. The statute, provides in pertinent part as follows: § 12-302. Right of appeal from final judgments—Exceptions. íjí % % % (c) in a criminal case, the State may appeal as provided in this subsection. iH % % :ji (3) (i) in a case involving a crime of violence as defined in § 643B of Article 27, and in cases under §§ 286 and 286A of Article 27, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. [Emphasis added. 11 ] The crux of the proper construction of this statute lies in the meaning of the text we have italicized immediately above.

Both parties recognize that our analysis depends principally upon whether the phrase “alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights” modifies both “evidence offered by the State” and “property” or, conversely, qualifies only the latter term. It is, of course, predictable that the parties stand on opposite sides of these two possible interpretations. Petitioner asserts that the plain language of § 12-302(c)(3)(i) unambiguously restricts the State’s authority to appeal a trial court’s exclusion of evidence to those cases in which, inter alia, the court’s exclusion is based upon a “violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights.” Id. ³³⁹ The State counters that its license to appeal a suppression order is much broader in the criminal cases specified. Seizing. upon § 12—802(c)(3)(i)’s employment of the conjunction “or,” the State argues that the key phrase regarding state and federal constitutional violations, by virtue of its disjunctive separation from “a decision of a trial court that excludes evidence offered by the State,” id., limits only the State’s authority to appeal a court’s decision that “requires the return of property,” id.

We agree with Petitioner. The General Assembly patently intended that the limitation of interlocutory appeals to issues of constitutional magnitude apply to a trial court decision that either “excludes evidence” or “requires the return of property.” The disjunction focused upon by the State between these two phrases relates only to their representing the two distinct subject matters of a criminal defendant’s pretrial motion(s) whose granting by the court may possibly be appealed by the State on an interlocutory basis. The trial court’s exclusion of evidence or requirement that property be returned are conjoined, however, in the respect that the court’s finding of a constitutional violation is a necessary precondition to the availability to the State of an interlocutory appeal in the specified criminal cases. As a purely textual matter, § 12—302(c)(3)(i)’s limitation of interlocutory appeals to decisions of constitutional law could certainly apply exclusively to return of property cases.

We can see no sensible reason, however, why the Legislature would have embraced such an intention. Decisions requiring the return of property appear to embody no significant legal distinction from judgments of evidentiary exclusion so as to restrict the availability of interlocutory appeal for the former more so than for the latter. Moreover, it cannot be doubted, first, that the number of criminal prosecutions involving a court-ordered return of property is far lower than those in which the court issues a pretrial order excluding evidence and, second, that a court’s requiring the State to return property would very, if not most, often be based on constitutional ³⁴⁰ principles, 12 while a trial court may exclude evidence on a myriad of non-constitutional grounds. 13 Hence, to the extent that a concern for judicial economy partially underlies § 12-302(c), return of property decisions would not appear to warrant a more stringent limitation of immediate access to appellate review. Reading § 12—302(c)(3), to permit the State to challenge by interlocutory appeal only constitutionally based exclusions of evidence is more consonant with the long-time unavailability of interlocutory appeals that served as precedent to the statute’s original passage in 1982.

Prior to that year, Maryland law afforded the State no opportunity to pursue an interlocutory appeal in a criminal case. It was against this backdrop that the General Assembly determined to create a right of interlocutory appeal for the State in only a limited number of criminal prosecutions while explicitly restricting this right in other ways. Because, again, evidentiary rulings arise innumerably during litigation between the State and criminal defendants, bestowing upon the prosecution the right to challenge every such ruling, even with the proviso that all other prerequisites ³⁴¹ within § 12-302(c)(3) must be satisfied, would reflect an expansiveness directly contrary to the Legislature’s ostensibly cautionary approach. We therefore believe the more reasonable interpretation of § 12—302(c)(3) is that its limitation to constitutional issues, like all other limitations within the statute, applies to every exercise by the State of its right to interlocutory appeal.

Although we find that the language of § 12—302(c)(3)(i) reveals a legislative intent to deny the State a right of interlocutory appeal of a trial court’s exclusion of evidence on non-constitutional grounds, the legislative history brought to this Court’s attention by the State only confirms, rather than dispels, the correctness of our determination. The State points out that within the Department of Legislative Reference’s bill file on Senate Bill 39, the 1982 legislative proposal to create § 12—302(c)(3), see 1982 Laws of Maryland, Ch. 493, there appears a summary explaining the effect of the proposed amendment as follows: The bill allows the State to appeal from a pretrial ruling by the Court to exclude evidence obtained in violation of the defendant’s constitutional rights. The bill is aimed at those cases in which the Judge excludes a defendant’s confession, physical evidence (such as drugs), or any evidence which is at the heart of the State’s case. The State may not take the appeal unless it certifies that the evidence is “substantial proof of a material fact in the proceeding.” Bill File Document entitled “S.B. 39—Criminal Cases—State’s Right to Appeal,” at 1 (emphasis added).

This passage strongly refutes the State’s position before this Court that § 12—302(c)(3)(i) was aimed at allowing the State an interlocutory appeal of any exclusion of evidence critical to the prosecution. On the contrary, the legislative history of § 12-302(c)(3) makes all the more evident that through its enactment the General Assembly sought to subject to immediate judicial review at the State’s request only constitutionally based suppressions. ³⁴² The State offers an alternative rationale for maintaining its right to an interlocutory appeal of the Circuit Court’s grant of suppression. It contends that if, as we hold, § ’ 12-302(c)(3)(i) requires in part that a trial court’s exclusion of evidence be based on state or federal constitutional grounds in order for the State’s right to file an interlocutory appeal to vest, a suppression based upon the Wiretap Act suffices for such purposes because of its “constitutional underpinnings.” Specifically, the State argues, The ultimate purpose of the statutory scheme established by Maryland’s Wiretap Act is to protect constitutional privacy interests. i|; íH ❖ Because suppression under the Wiretap Act is designed to further important constitutional interests, the grant of a suppression motion under the Act should be construed to fall within the ambit of Section 12—302(c)(3). % ifc jjj The harsh remedy of suppression of reliable evidence is presumably available under the Act only because of the constitutional underpinnings of the Act. Supplemental Brief of Respondent at 8-9 (citations omitted).

We reject this argument. It is true that specific provisions of the Wiretap Act purposely contain minimum protections of the constitutional rights to privacy of Maryland citizens. This Court has itself made such an observation on earlier occasions. See, e.g., State v. Bailey, 289 Md. 143, 153-54 , 422 A.2d 1021, 1027 (1980).

Yet we have likewise explained.that a good many of the provisions in the Act were intended to safeguard the privacy of certain communications in this State in ways more substantial than ensured by the United States and Maryland Constitutions or by the federal statutory precursor to the Wiretap Act, namely Title III of the Omnibus Crime Control and Safe Streets Act, which was passed in 1968, see Pub.L. No.90-351, tit. Ill, §§ 801-04, 82 Stat. 197 , and codified at ³⁴³ that time as 18 U.S.C. §§ 2510-2520 (hereinafter “Title III”). See Mustafa v. State, 323 Md. 65, 69 , 591 A.2d 481, 483 (1991); Wood v. State, 290 Md. 579, 583 , 431 A.2d 93, 95 (1981); State v. Baldwin, 289 Md. 635, 641 , 426 A.2d 916, 920 (1981). See also Richard P. Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U. Balt.

L.Rev. 183, 220-21 (1979) (stating that the Wiretap Act “as written guarantees to the people of Maryland, insofar as the state, itself, is concerned, greater protection from surreptitious eavesdropping and wiretapping than that afforded the people by the Congress.”). 14 For instance, while it is both constitutionally permissible, see Lopez v. United States, 373 U.S. 427, 438-40 , 83 S.Ct. 1381, 1387-89 , 10 L.Ed.2d 462 (1963), 15 as well as lawful under Title III, see 18 ³⁴⁴ U.S.C. § 2511(2)(c) and (d), to intercept and record a conversation as long as at least one party consents to such and the purpose for such is not otherwise unlawful, the Maryland Act generally requires the prior consent of all parties to a conversation in order for any interception or recording thereof to be lawful, see § 10—402(e)(3). It may be the case that § 10-411, the provision of the Wiretap Act originally in question in the present case, was also designed to further the goals of protecting individual persons’ privacy interests. However true that may be, § 10-411, as the State concedes, was not itself designed to ensure constitutional rights to privacy. The Wiretap Act’s inclusion of provisions furthering interests and rights not