Haina and Strawbridge v. State

Thompson, J., delivered the opinion of the Court. Carla Wyanette Strawbridge and Peter Xavier Haina were convicted for violation of the controlled dangerous substances laws of Maryland by the Circuit Court for Prince George’s County. Haina was sentenced to a total of 20 years. Strawbridge was sentenced to a total of 5 years, which sentences were suspended except for 12 days to be served on 6 consecutive weekends and placed on active probation for 5 years.

The primary issues on appeal concern the validity of a wiretap order under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 . Wiretaps Both appellants initially contend tkat the wiretap order was invalid because of the failure of the application and order to name the appellant Strawbridge as a person who was committing the offense and whose communications ²⁹⁸ were to be intercepted. The pertinent provisions of 18 U.S.C. § 2518 in support of these contentions are: (l)(b)(iv) — “Each application shall include the following information: . . . the identity of the person, if known, committing the offense and whose communications are to be intercepted. . . .” (4)(a) — “Each order authorizing or approving the interception of any wire or oral communication shall specify — the identity of the person, if known, whose communications are to be intercepted . . . .” The appellants, relying on a partial quotation of dictum of the United States Supreme Court in United States v. Kahn, 415 U. S. 143 , 94 S. Ct. 977 , 39 L.Ed.2d 225 (1974) * , argue that the standard for determining whether or not a person is “known” within the meaning of the statute is whether or not the government had reason to suspect that person’s complicity in the commission of the offense and the use of the telephone. In Kahn, supra, however, the Supreme Court stated that: “We conclude, therefore, that Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that the individual is ‘committing the offense’ for which the wiretap is sought.” Id. at 155 .

It is evident then that “probable cause” to believe that a person is committing a specific crime and may be overheard on a specific telephone and not a “suspicion” is the standard to determine whether he is known to the State within the meaning of the statute. United States v. Bernstein, 509 F. 2d 996 (4th Cir. 1975); United States v. Donovan, 513 F. 2d 337 (6th Cir. 1975); United States v. Doolittle, 507 F. 2d 1368 (5th Cir. 1975), reargued 518 F. 2d 500 ; 1 and also see United ²⁹⁹ States v. Moore, 513 F. 2d 485 (D.C. Cir. 1975) construing the local law for the District of Columbia which is, for these purposes, identical with the general statute. To determine whether or not there was probable cause to believe that the appellant Strawbridge was violating the controlled dangerous substance laws and would be using the specific telephones we first turn to the affidavit of PFC Howard S. Blake in support of the application for the ex parte order for the interception of the wire communications. Consisting of 24 pages, it detailed through a confidential source, whose reliability is not questioned and is referred to in the affidavit as (CS), and independent investigation by the affiant the reasons which he believed that the appellant Haina was engaged in a large wholesale illicit drug operation.

The affidavit includes the following four references to the appellant Strawbridge: 1. “The (CS) has known Peter Xavier Haina for approximately three (3) years. The (CS) stated that Peter Xavier Haina resides at (5611 Monroe Street, Cheverly, Prince George’s County, Maryland). The said (CS) further related that the said residence (5611 Monroe Street, Cheverly, Prince George’s County, Maryland), is the residence of Peter Xavier Plaina’s mother and that Peter Xavier Haina resides in the upstairs portion of the said residence with his girlfriend, a white female known as ‘Carla’. 2. “The (CS) has told me that Haina’s girlfriend, a white female known as ‘Carla’, is also involved in the same scheme to distribute controlled dangerous substances. The (CS) stated that it has telephoned Haina as recently as the month of June, 1974, and that the (CS) has talked to ‘Carla’ on the occasions when Haina was not at home.

The (CS) further related that ‘Carla’ had Haina return the (CS’s) telephone calls that it had made to Haina when Haina was not at home. The (CS) further stated that it has had drug related conversations mth ‘Carla’ while talking to her on Haina’s telephone number (927-4724). ³⁰⁰ “The (CS) stated that on the basis of its many in person and telephone conversations with Peter Xavier Haina and the white female known as ‘Carla’, it is absolutely positive in its identification of the person’s voices over the telephone.” 3. “The (CS) also stated to your affiant that Peter Xavier Haina operates a late model Chevrolet, Corvette, gray in color which bears Maryland Registration LR 9024. The (CS) also related to your affiant that Haina occasionally operates a Volkswagon, light blue in color which bears South Carolina registration (UIB 147), and that this vehicle belongs to Haina’s girlfriend who is known as ‘Carla’. 4. “A registration listing furnished to me by the South Carolina Motor Vehicle Administration revealed that South Carolina registration UIB 147 was on a 1970 Volkswagon, listed to one: Carla W. Strawbridge, 111 Arrowwood Road, Columbia, South Carolina. “This leads your affiant to believe that the above listed Carla W. Strawbridge is the same white female known as ‘Carla’ who resides with Peter X. Haina at 5611 Monroe Street, Cheverly, Prince George’s County, Maryland.” (Italics added) When the facts in the affidavit are taken as a whole, we find that the State had probable cause to believe that Strawbridge was involved in the narcotics operation and would be using either of the two telephones that was to be monitored under the application and order. As stated before the veracity of the informant is not questioned, nor can his basis of knowledge be challenged.

Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U. S. 410 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969). The information he recited to Officer Blake was gained from personal dealings with the appellants. While his references to Strawbridge are of a conclusive nature, when they are taken in context they are sufficient. Appellant ³⁰¹ Haina’s operation was conducted through the use of a telephone in the upstairs portion of the house where Strawbridge resided.

When Haina was not at home, the informant would have “drug-related conversations” with Strawbridge. She would then have Haina return the call. The informant would then purchase narcotics from Haina. These facts sufficiently support the statement that Strawbridge was also involved in the same scheme to distribute controlled dangerous substances.

It was not necessary that the informant detail his “drug-related” conversations with Strawbridge in order for the State to have probable cause to believe that Strawbridge was involved in the scheme, when it is obvious, when taken with the other facts, that she was. It should be pointed out that probable cause does not mean mathematical certainty nor even proof beyond a reasonable doubt. It is sufficient if the officers had reasonable grounds to believe that the individual was involved in the illicit activities and in the use of the telephones. See Collins v. State, 17 Md. App. 376 , 302 A. 2d 693 (1973).

It was mandatory that Strawbridge be named in the application and order. Further evidence that Strawbridge should have been named in the application is revealed by the testimony of Officer Blake at the suppression hearing: Q. “Weren’t you aware that Carla Strawbridge was in fact involved with Peter Haina in narcotics operations out of 5611 Monroe Street? A. “Yes, sir. Q. “And the reason you were made aware of that was based on the information relayed to you by your informant, is that correct?

A. “Yes, sir. Q. “And you went ahead and corroborated your informant’s information by checking with the Department of Motor Vehicles in South Carolina? A. “Yes, sir. Q. “And based on your independent observations? ³⁰² A. “Yes, sir.

Q. “In your mind, I am talking now prior to July 10, 1974, you were, for all intents and purposes, sure in your mind that Carla Strawbridge was involved with Peter Haina in terms of narcotics operations? A. “Not completely, no, sir;” While this was not a consideration which could have been taken into account by the judge at the signing of the order, it is further evidence that Strawbridge was a known person to the State at the time they made out the application for the order. The reasons for the rule that the application and order must name an individual whose conversations there is probable cause to believe is involved in illegal activity and will be using the telephones in question are well set out in United States v. Bernstein, supra, which we summarize. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was enacted to protect the policy of wire communications allowing the use of electronic surveillance in investigation of certain crimes.

It prohibits wiretapping to collect general intelligence about individuals. Even though a naming of a known offender whose conversations are to be intercepted may not be a constitutional requirement, United States v. Kahn, supra, note 15, identification fosters conformity with both constitutional and statutory requirements; “in particular it is important to the exercise of (A) executive approval, (B) prior judicial authorization and (C) subsequent judicial review of interception.” For these reasons, Bernstein found that identification of known persons was a precondition to a valid intercept order and failure to identify renders an interception contrary to law and invalid as to that person. The Maryland Court of Appeals in State v. Siegel, 266 Md. 256 , 292 A. 2d 86 (1972), held that there must be a strict compliance with the statute in order to obtain a valid order to engage in wiretapping. The recent case of Spease and Ross v. State, 275 Md. 88 , 338 A. 2d 284 (1975), reiterated its holding insofar as the original ³⁰³ application and order were concerned, while holding an unintentional failure to serve notice of the tap upon a named accused does not require suppression of intercepted conversations, in the absence of prejudice.

The United States Supreme Court, subsequent to Siegel, supra, also held that there must be a strict compliance with a statute in order to obtain a wiretap order. United States v. Giordano, 416 U. S. 505 , 94 S. Ct. 1820 , 40 L.Ed.2d 341 (1974). The lack of strict compliance with this condition precedent to a valid order in regards to Strawbridge, prevents the introduction of any evidence derived from the wiretap into evidence against her. Bernstein, supra; 18 U.S.C. § 2515 , infra.

The State argues (assuming she should have been named in the warrant) her convictions for the simple possession of cocaine and of marijuana should not be reversed. The evidence shows that while the wiretaps were in progress the appellant Haina engaged in two telephone calls in which he was informed that a confederate had been arrested and had named him as one involved in the drug traffic. Haina’s response was that he intended to “clean house.” As the result of hearing these conversations, the police officers stationed observers at the Haina home and observed the appellant Strawbridge bring a green bag out of the front door of the home and dispose of it after she walked to the side of the house out of the sight of the officers. A subsequent search located the bag under the porch of a neighbor’s house.

The bag contained cocaine and marijuana which serve as a basis for appellant Strawbridge’s convictions and supported the several convictions of the appellant Haina. The wiretaps showing appellant Strawbridge’s conversations were introduced into evidence and showed that her possession was not that of an innocent agent, therefore, her conviction must be reversed for this reason alone. We think her convictions must be reversed for yet another reason. It is apparent from what we have said, that Strawbridge was arrested directly as a result of the wiretap on her residence even though she was not a party to the conversations which precipitated her being found in ³⁰⁴ possession of the prohibited controlled dangerous substances; thus, if she has standing, which we will discuss hereinafter, the physical evidence as to her must also be suppressed.

Carter v. State, 274 Md. 411 , 337 A. 2d 415 (1975), held that Maryland must follow the fruit of the poison tree doctrine first set up in Wong Sun v. United States, 371 U. S. 471 , 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963). In Carter, supra, the Court held that information obtained by an illegal wiretap could not be used as a basis for procuring a search warrant which was otherwise valid. In the instant case, however, we would be required to hold the seizure of the narcotics invalid as to the appellant Strawbridge under the clear language of the federal statute, which states: 18 U.S.C. § 2515 : “Whenever any wire or communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” 18 U.S.C. § 2518 : (10) (a) “Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that — (i) the communication was unlawfully intercepted; (11) the order of authorization or approval under which it was intercepted is insufficient on its face; or ³⁰⁵ (iii) the interception was not made in conformity with the order of authorization or approval. . . .” (Italics added) In Alderman v. United States, 394 U. S. 165 , 89 S. Ct. 961 , 22 L.Ed.2d 176 (1969), it was found that the term “aggrieved party” did not apply to everyone against whom damaging evidence derived from an illegal wiretap was introduced. In order to suppress the party must have had his right to privacy breached by the surveillance.

A petitioner is “entitled to the suppression of government evidence originating in electronic surveillance violative of his own Fourth Amendment right to be free of unreasonable searches and seizures. Such violation would occur if the United States unlawfully overheard conversations of a petitioner himself or conversations occurring on his premises, whether or not he was present or participated in those conversations.” Alderman, supra at 176 . It is obvious, therefore, from the legislative history of Title III and the Supreme Court interpretation that the term “aggrieved party” is to be construed in accordance with existing standing rules to invoke the Fourth Amendment for a suppression motion. 2 In the case at bar evidence was introduced against Carla Strawbridge which State officials obtained by overhearing conversations occurring from her residence. For this reason she had standing to challenge the fact that she was not named in the application and order.

The appellant, Haina, contends inasmuch as the warrant was invalid as to appellant, Strawbridge, he as well as she is entitled to object to all evidence that was obtained as a result of the wiretap. As we have said before since it was also his residence he would appear to have standing. As pointed out in Alderman, supra at 180, n. 11 , however, a property owner’s right to object comes from a violation of his rights, not from an invasion of the rights of his family or invitees. In the case at bar Haina was named in the application and order; therefore, none of his privacy rights were illegally invaded.

Alderman, supra, also held that ³⁰⁶ evidence inadmissible against one co-conspirator is not inadmissible as to another co-conspirator. To support his argument appellant Haina cites United States v. Bernstein, United States v. Donovan, and United States v. Moore, all supra. We see no support to appellant Haina’s position in any of them. On the contrary the language of all indicates quite clearly that only the unnamed person can benefit from this type of invalidity in the application and order for the wiretap.

United States v. Bellosi, 501 F. 2d 833 (D.C. Cir. 1974) tends to support the appellant’s argument. We do not find it persuasive, however, because although anyone aggrieved has standing under the statute this does not mean he can prevail unless his own privacy has been invaded. Haina’s second contention is that the application did not contain a statement as to whether or not other investigative procedures had been tried and failed, or why they appeared unlikely to succeed if tried, or to be too dangerous. A statement describing the feasibility of other investigative techniques was in compliance with 18 U.S.C. § 2518 (1) (c).

This statute reads as follows: “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: “(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;” Detective Blake’s affidavit was incorporated in the application and included the following: “Further, it appears to your affiant that the use of electronic devices to intercept and record