Howard v. State

Orth, J., delivered the opinion of the Court. I. Under the adversary system enjoyed in the administration of justice in this State, it is imperative that a nice balance be struck between responsibility for criminal conduct and the protection of Constitutional rights guaranteed to all persons. If the scale is weighed too heavily on either side, due process is eroded. The attainment of this delicate balance is especially appropriate with respect to searches and seizures.

And, in light of the ever increasing variety and sophistication of devices enabling the clandestine interception of wire and oral communications and the efficacy of that tool in the everlasting fight against crime, it is particularly apropos when such a communication is sought to be seized. Recognizing this, the Congress of the United States adopted a comprehensive scheme governing in minute detail "wire interception and interception of oral communications.” 18 U.S.C.A. §§ 2510-2520 . The General Assembly of Maryland, to implement the federal statute ⁴⁹ where called for, and to impose even stricter conditions in certain respects, also enacted legislation on the subject, in major part tracking the federal statute. Maryland Code (1974, 1980 Repl.

Vol. § 10-401 through § 10-412, subtitle "Wiretapping and Electronic Surveillance,” of the Courts and Judicial Proceedings Article (hereinafter Courts Art.). 1 Complying with the divers conditions prescribed by the statutes places a very real, albeit necessary, burden on the enforcement authorities applying for and carrying out an interception order and on the judge issuing it. Sanction for non-compliance is harsh. Both the federal statute, § 2515, and the State statute, § 10-405, in broad terms, prohibit the receiving in evidence at practically all proceedings any part of the contents of a communication, or any evidence derived therefrom if the disclosure of that information would be in violation of the statutes. The burden of compliance is aggravated in Maryland due to the unusual stand taken in testing conformance with the conditions.

Almost universally other jurisdictions are satisfied if there be substantial compliance with no prejudice shown. 2 Maryland, however, distinguishes between the statutory conditions which apply before or during the interception (preconditions) and those which apply after the termination of the interception (post conditions). With respect to preconditions, Maryland demands strict compliance; substantial compliance is sufficient only in regard to post conditions. This came about by judicial fiat upon construction of the statutes by the Court of Appeals. In State v. Siegel, 266 Md. 256, 273-274 , 292 A.2d 86 (1972), the Court, examining the validity of interception orders, explicitly ⁵⁰ rejected the substantial compliance standard and unequivocally declared: "The statute 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).

In Spease and Ross v. State, 275 Md. 88 , 338 A.2d 284 (1975), the Court, in determining that the provisions of a wiretap order and the federal law’s requirements as to the minimization of interceptions had been satisfied, clearly applied the substantial compliance standard. But it expressly affirmed Siegel : "Nothing in our opinion in this case is intended to depart in any way from our holding in Siegel.”Id. at 108, n. 3. In Poore v. State, 39 Md. App. 44 , 384 A.2d 103 (1978), this Court was obliged to construe Siegel and Spease upon claims that the decisions were in conflict. We found that the teachings of Siegel and Spease made it "obvious that there is a distinction between pre-order and post-order compliance.

In the former, a defect will void the order and cause suppression of the evidence, but in the latter, a defect will not vitiate the order if there has been substantial compliance and no prejudice to the defendant is shown.” 39 Md. App. at 53-54 (emphasis in original). The Court of Appeals denied certiorari. 282 Md. 737 (1978). We explicated this view in Baldwin v. State, 45 Md. App. 378 , 413 A.2d 246 (1980) ; aff'd, State v. Baldwin, 289 Md. 635 , 426 A.2d 916 (1981) . In State v. Mayes, 284 Md. 625 , 399 A.2d 597 (1979), the Court of Appeals iterated the dictate of Siegel .

Observing that "the directive contained in this language has not been eroded by any decision of this Court over the intervening seven years,” it reaffirmed the propriety of the dismissal of the indictment in that case. 284 Md. at 640 . But in State v. Bailey, 289 Md. 143 , 422 A.2d 1021 (1980), the Court admonished that only upon "a superficial reading” of Siegel and Spease would there appear to be a conflict in the two cases "for no such conflict exists.” It pronounced that ⁵¹ "[t]he cases are consistent and compatible with each other.” Id. at 153. The Court, quoting Siegel at 274 , pointed out that Siegel concerned "'preconditions designed to protect appellee’s constitutional rights. ...”’ Id. In Spease, on the other hand, the order was valid on its face and all the statutory requirements were fulfilled.

Id. The Court explained: "The difference between the two cases is clear. The statutory provisions which require the wiretap order to conform to specific minimum guidelines are those which the legislature perceives to contain minimum safeguards to constitutional rights. Once the directives of the statute have been met and a valid order has been issued, compliance, at least in the area of minimization of unauthorized communications and service of inventory, can be judged by a more lenient substantial compliance standard.” Id. at 153-154.

To like effect is State v. Baldwin, 289 Md. 635, 642-643 , 426 A.2d 916 (1981), in which the Court speaks of "the substantial compliance test of Spease. ” Thus, it is readily apparent that the Court of Appeals, although making no reference to the Poore and Baldwin decisions of this Court, was in accord with the view we had expressed in those cases, namely, that strict compliance was required as to preconditions while substantial compliance sufficed for post conditions. 3 We understand this to be the present status of the law and shall apply it in deciding the instant cases. ⁵² II. Mark Stewart Howard and Gerald Matthew Lecompte seek to set aside the judgments entered against them at separate trials in the Circuit Court for Prince George’s County upon their convictions of violations of the Controlled Dangerous Substances Law. 4 They join in this appeal and jointly urge that the trial court erred in denying their motions to suppress evidence derived from wire interceptions. They claim that receipt of the challenged evidence in their respective trials violated the federal and State statutes and point to a gaggle of preconditions relating to the interceptions, alleging that there was not strict compliance as to them. Their contentions go to the applications for the interception orders, to the affidavits supporting the applications, to the orders issued and to the reports submitted on the progress of the interception.

We agree that the conditions on which they rely apply before or during the conduct of the interception and, therefore, as preconditions, must be followed without the slightest deviation from their prescribed paths. We do not agree, however, that there was not strict compliance in regard to them. We believe that the enforcement and judicial authorities here involved carried out the dictates of the interception statutes to the letter as Siegel requires. We have carefully considered the contentions of appellants, as best we are able to sort them out and understand them as presented, and are not persuaded to the contrary.

We affirm and give our reasons. ⁵³ III. We are concerned with three orders which authorized wire interceptions. The first was issued on 1 February 1980 by a judge of the Circuit Court for Howard County (Order No. 1). The second was issued on 10 March 1980 by a judge of the Circuit Court for Anne Arundel County (Order No. 2).

The third was issued on 10 April 1980 by the judge who issued Order No. 2, and extended that Order (Order No. 3). Section 2518 (3) of the federal law, and § 10-408 (c) of the State law, in essentially the same language, permit a judge upon request to enter an ex parte order authorizing interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting. Whether to enter an order for which application has been made is in the discretion of the judge. But, if he decides to enter it, he can validly do so only upon certain determinations.

The state statute, tracking the federal law, provides that the order may be entered: "if the judge determines on the basis of the facts submitted by the applicant that: (1) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 10-406 of this subtitle; (2) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception; (3) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; (4) There is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by this person.” Courts Art. § 10-408 (c). ⁵⁴ Each of the orders entered here contains certain conclusions reached by the issuing judge. The first four conclusions, expressed in identical language in each order, are: "(1) There is probable cause to believe that the below described individuals have committed, are currently committing, and are about to commit violations of the Controlled Dangerous Substances Laws of the State of Maryland, including the unlawful manufacturing, possession, distribution and conspiracy of Controlled Dangerous Substances violations of Article 27, Sections 276-302, of the Annotated Code of Maryland; (2) There is probable cause to believe that the below described facilities have been, are being, and will continue to be used by the suspects for said crimes; and the use of the hereinbefore described electronic listening and recording devices, in order to intercept and record the hereinbelow specified communications, is necessary and essential in order to gain evidence leading to the solution of these crimes, to the identity of other persons with whom the described persons are working; and in order to prevent the continuation of said crimes; and (3) That normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried or to be too dangerous. Such evidence, in item #2, cannot otherwise be obtained and such prevention measures cannot be exercised by alternative means than by interception as requested; and (4) There is probable cause to believe that the facilities from which the hereinbelow described communications are to be electronically intercepted and recorded are being used and are about to be used in connection with, and in furtherance of the commission of the aforesaid crimes by the below described individuals....” ⁵⁵ The seventh and last conclusion in each order reads in essence: "(7) The facts and circumstances recited in the Application and in the Affidavit in support thereof and incorporated by reference therein do satisfy me that there is probable cause and furnish a proper legal basis for the issuance of this Ex Parte Order and justify the degree of intrusion sought.” Appellants, below and on appeal, allege that the orders are defective because they do not reflect the determination required by § 10-408 (c) paragraph (2) of the State law (§ 2518 (3) paragraph (b) of the federal law). They concede that the orders "contain every required finding as specified in [18 U.S.C.A.,] Section 2518 (3) and [Courts Art.,] Section 10-408 (c) except for this finding.” Below, they also expressly conceded that the respective affidavits showed sufficient probable cause for the judge to reach the conclusion called for by paragraph (2).

The trial court believed that the general, catch-all finding of probable cause set out in the seventh conclusion in the orders was sufficient to reflect that the issuing judge had made the determination required by subsection (c) paragraph (2). We need not decide whether the rationale relied on by the trial court will bear up under the strict compliance test. We think that the orders otherwise showed that the issuing judge determined that there was "probable cause for belief that particular communications concerning that offense will be obtained through the interception.” Conclusions (1), (3), and (4) in the orders clearly reflect, as appellants concede, that the issuing judge made the determinations required by paragraphs (1), (3), and (4), respectively, of subsection (c), section 10-408 ( 18 U.S.C.A. § 2518 (3) (a) (c) and (d)). The judge determined, as set out in conclusion (2) of the order, that there is probable cause for belief that "the facilities have been, are being, and will continue to be used by the suspects” for committing crimes proscribed by the ⁵⁶ Controlled Dangerous Substances Laws, and that the interception and recording of specified conversations” is necessary and essential in order to gain evidence leading to the solution of these crimes, to the identity of other persons with whom the described persons are working and ... to prevent the continuation of said crimes.” Ipso facto he has determined, as required by the statutes, that "particular communications concerning that offense will be obtained by the interception.” This is no more than a common sense reading of the order conclusion (2), and the strict compliance standard is no wise violated by the application of common sense.

Strict compliance can be demonstrated by other than the exact words of a statute. We hold that with respect to the directions of Courts Art. § 10-408 (c) and 18 U.S.C.A. § 2518 (3) for the issuance of an interception order, the orders here did not deviate from the dictates of the statutes. Appellants also suggest that the orders are defective in that they do not contain specific factual findings on which the conclusions are based. Both the state and federal statutes provide that the determinations of the issuing judge are to be "on the basis of the facts submitted by the applicant.” § 10-408 (c), § 2518 (3).

Neither statute prescribes that the factual bases be set out in the order. See § 10-408 (d), § 2518 (4). Paragraph (7) of each order, as we have seen, was a general finding of probable cause for the issuance of the order and for the degree of intrusion. The facts and circumstances recited in the applications and affidavits, incorporated in the orders by reference, were sufficient to satisfy the issuing judge.

Absent a statutory requirement or, in the circumstances, any logical need for such findings appearing in the order, we see no merit in appellant’s contention.

IV

Appellants attack the Howard County order as "overbroad and unspecific.” They allege that, contrary to the declaration ⁵⁷ in paragraph (1) of the conclusionary part of the order, 5 there was no probable cause on the basis of facts shown by the applicant to support the determination that controlled dangerous substances were being manufactured, as distinguished from distributed and possessed. We do not agree. "Manufacture” is broadly defined by the Controlled Dangerous Substances Act and "includes any packaging or repackaging of [a controlled dangerous] substance or labeling or relabeling of its containers....” Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 277 (p).

It was clear in the application and incorporated affidavit that from the quantity of the substances from time to time involved, the size of the buys made by the undercover agents, and the conversations had and overheard, a major supplier was concerned. There was ample probable cause for belief by the judge that a controlled dangerous substance was being "manufactured” or that there was a conspiracy to so "manufacture” as that word is defined by the statute. However, even assuming arguendo, that there were no facts sufficient to show probable cause for a belief that there was the manufacturing of a controlled dangerous substance, the operating portion of the order, setting out the specific orders, spoke only in terms of the distribution and conspiracy to distribute controlled dangerous substances. Appellants also support their contention that the order was "overbroad and unspecific” by urging that the facts submitted showed that cocaine was the only controlled dangerous substance involved, and that the order did not adequately specify particular offenses.

We think the references to controlled dangerous substances and to violations of the Controlled Dangerous Substances Laws with Maryland Code citations were sufficient. We agree with the trial judge that "the generic identification of controlled dangerous sub ⁵⁸ stances, rather than the more specific identification of cocaine” did not affect the validity of the order. The statutory requirements for the issuance of an interception order speak of "a particular offense enumerated in § 10-406 of this subtitle. ...” § 10-408 (c) (1). The offenses enumerated in § 10-406 include "dealing in controlled dangerous substances, or any conspiracy to commit [that offense].” And the comparable federal provisions include in the designation of "a particular offense,” § 2518 (3) (a), "dealing in narcotic drugs, marihuana or other dangerous drugs... or conspiracy to commit any of the foregoing offenses.” § 2516 (1) (e) (g).

"The Congress certainly indicated its intent that, within certain limits, state judges could broadly delineate the offenses for which they were granting authorization to tap....” State v. Mayes, supra, 284 Md. at 635 . See United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979), cert. denied, 446 U.S. 935 (1980); United States v. Steinberg, 525 F.2d 1126 (2d Cir., 1975), cert. denied, 425 U.S. 971 (1976). We do not think those limits were exceeded here. We reject this contention of appellants.

Appellants present what appears to be a companion contention. They claim that the affidavits were "defective in that they failed to correctly specify the controlled dangerous substances with which the named parties are alleged to be involved.” In the prior contention, the attack went to the probable cause to support the orders. As to this contention, the argument seems to be that the affidavits were too specific to justify the orders. Appellants urge that because the backbone of the affidavits concerned dealings in cocaine as the controlled dangerous substance, the affidavit should have requested an application for intercepting conversations relating to cocaine rather than to "controlled dangerous substances.” For many of the reasons set out in disposing of the prior contention, it was not necessary, in light of the facts recounted in the affidavits that the applications and the orders be as restrictive as appellants would have them.

See State v. Nelson, 46 Md. App. 104, 109 , 415 A.2d 865 (1980), in which we found the police had shackled themselves by "an unnecessarily restrictive order.” See also United States v. ⁵⁹ Tortorello, 480 F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866 (1973); United States v. Armocida, 515 F.2d 29 (3d Cir.), cert. denied, 423 U.S. 858 (1975). We think that the applications, affidavits, and orders were sufficiently specific with respect to the crimes alleged to satisfy the mandates of the governing statutes. V. Appellants direct another salvo at the orders with the claim that they "are defective in that they are based on petitions and affidavits which do not provide a full and complete particular description of the type of communication sought to be intercepted... .” They look to the federal and State statutes, each of which require that the application for an interception order shall include "[a] full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including ... a particular description of the type of communications sought to be intercepted.. ..” 18 U.S.C.A. § 2518 (1) (b) (iii), § 10-408 (a) (2) (iii). The statutes also require, in the precise words of the directive relating to an application, that each order authorizing any interception specify such a description, and, in addition, "a statement of the particular offense to which it relates.” § 2518 (4) (c), § 10-408 (d) (iii).

The orders here strictly complied with these dictates. They stated, with minor variations, "that the type of communications sought to be intercepted are telephonic conversations, and shall be and the same hereby are particularly described as follows: conversations and communications of the above described subjects and those others as yet unknown involving violations of the Controlled Dangerous Substances Laws, violations of Article 27, Sections 276-302, of the Annotated Code of Maryland to and from telephone number (301) 465-2513; more specifically: ⁶⁰ (1) The identity of all participants, particularly the higher-ups in this distribution and conspiracy to distribute Controlled Dangerous Substances; (2) The degree of their participation in this distribution and conspiracy; (3) The addresses and telephone numbers of all participants so that the location of any criminal activity with regards to this conspiracy and distribution of Controlled Dangerous Substances can be determined; (4) All details as to the manner of shipment or movement of quantity of Controlled Dangerous Substances, source of these Controlled Dangerous Substances, methods of eluding law enforcement detection, and whether or not this is one in a series of similar criminal conspiracies for distribution of the Controlled Dangerous Substances; (5) And other evidence necessary to the prosecution and conviction of the above