Ricks v. State

¹³ MURPHY, Chief Judge. This case involves a challenge to the legality of a court order authorizing non-consensual video surveillance by police of suspected illegal drug activities within a residential apartment in Baltimore City. The central issue is whether this type of surveillance is permissible in view of the Maryland Wiretap and Electronic Surveillance Act (the Maryland Act), Maryland Code (1984), § 10-401 to 10-413 of the Courts and Judicial Proceedings Article and, if so, whether the surveillance in this case was violative of the Fourth Amendment’s provisions against unlawful searches and seizures. A further threshold issue is also presented; it pertains to standing to raise the Fourth Amendment question in the circumstances of this case.

I In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521 (1970, 1987 Cum.Supp.) (the Federal Act). It did so in the wake of the Supreme Court’s decisions in Berger v. New York, 388 U.S. 41 , 87 S.Ct. 1873 , 18 L.Ed.2d 1040 (1967); and Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), both of which recognized that constitutional strictures existed on both the state and national governments’ right to conduct electronic surveillance. State v. Mayes, 284 Md. 625, 627 , 399 A.2d 597 (1979). The purpose of the Federal Act was to protect the privacy of the individual while at the same time aiding in the enforcement of the criminal laws.

United States v. Kahn, 415 U.S. 143 , 94 S.Ct. 977 , 39 L.Ed.2d 225 (1974); Mayes, supra.; State v. Maddox, 69 Md.App. 296 , 517 A.2d 370 (1986). The Federal Act, therefore, prohibited the interception and use of oral and wire communications unless obtained in strict conformity with the Act’s provisions, which prescribed a uniform minimum national standard governing the interception and use of such communications in connec ¹⁴ tion with a number of designated criminal offenses. 1 The Federal Act permits state law enforcement officers, if authorized by state statute adopting these national standards, to intercept wire and oral communications, provided that the state law is not more lenient than the Federal Act (although it could be more restrictive). State v. Siegel, 266 Md. 256 , 292 A.2d 86 (1972). The Federal Act mandates strict judicial supervision and approval at all stages of the authorized surveillance. 2 Section 2516 inhibits any non-consensual interceptions without first obtaining a court order; an application in support of a request for surveillance must first be approved by designated law enforcement officials and contain a sworn statement of facts justifying interception of wire or oral communications.

Under § 2518(l)(b)(i) through (iv) the application for the court order must specify the particular offense under investigation; the nature and location of the targeted interception; the type of communication to be intercepted; and the identity of the targeted individuals. Provisions in § 2518 require that the application state whether traditional investigative procedures have been tried; the requested duration; whether the interception should continue after the desired communication is initially intercepted; and whether previous requests had been made. Other provisions of § 2518 authorize a judge, by ex parte order, to authorize the surveillance upon a determination that suffi ¹⁵ cient probable cause exists that (1) a particular offense covered by the Act was or will be committed; (2) the surveillance will intercept communications pertaining to the specified offense; (3) the illegal activities are being conducted at the described location; and (4) that traditional investigative methods have been tried and failed, are likely to fail, or are too dangerous to attempt. Once authorized by court order, the Federal Act requires that law enforcement officers take strict precautionary measures insuring that only communications related to the specified offenses are intercepted (“minimization”), § 2518(5); that all documents be sealed, § 2518(8)(a) and (b); and within a specified time period after termination of the surveillance the parties whose communications were intercepted must be advised (“Inventory Notice”), § 2518(8)(d).

A violation of any of these requirements may mandate the suppression of the seized evidence, § 2518(10). See generally Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8(2) XJ.Balt.L.Kev. 183 (1979). II In 1977, pursuant to the provisions of Title III, Maryland adopted its present Wiretap and Electronic Surveillance Act (the Maryland Act); it was modeled upon and closely tracked the provisions of the Federal Act, although in some particulars it was more restrictive than the Federal Act. Wood v. State, 290 Md. 579 , 431 A.2d 93 (1981); State v. Baldwin, 289 Md. 635 , 426 A.2d 916 (1981); State v. Bailey, 289 Md. 143 , 422 A.2d 1021 (1980); State v. Siegel, supra; Benford v. ABC, 554 F.Supp. 145 (D.Md.1982).

The Maryland Act, like the Federal Act, did not mention video surveillance; both acts governed the interception of wire and oral communications. As authorized by the Federal Act, §§ 10-406 and 10-408 of the Maryland Act permit designated state law enforcement officers, upon the requisite probable cause showing, to apply to a circuit court judge for an order authorizing the interception of wire and oral communica ¹⁶ tions for the purpose of providing evidence of certain designated criminal offenses including, “dealing in controlled dangerous substances.” 3 III On June 8, 1984, officers of the Baltimore City Police Department and Federal Drug Enforcement Agency applied to Judge Milton Allen, a circuit court judge, for an order authorizing simultaneous audio and video surveillance of an apartment in Baltimore City, leased by one Láveme Pickney. In an 84-page sworn application for the order, the affiants, four in number, indicated that their investigation was directed at high echelon individuals associated with a major, multi-dimensional illegal narcotics distribution organization. The subject apartment, according to affiants, was the “cut house” used to process and distribute the illegal drugs.

Based on earlier authorized wiretap interceptions of two other “base stations” utilized by the criminal enterprise, the subject apartment was known among the organization’s members as “the hill.” The application outlined in great detail the genesis and virtually day-to-day progress of the investigation; that the wiretaps had intercepted cryptic and often coded conversations between members of the organization but known by the investigating officers to relate to illegal drug activity; and that the subject apartment was a location regularly frequented, usually in the late night hours, by the organization’s members to further their illegal drug activity and, in particular, to dilute, package, and distribute the controlled dangerous substances. Notwithstanding the extensive and lengthy investigation by the affiants, which utilized or considered utilizing all man ¹⁷ ner and means of conventional and innovative techniques, 4 the application recited that the police were unable to determine the organization’s method of interstate supply and the location of other places where the illegal drugs were stored before distribution. The application explained that the organization’s members were so disciplined in their speech as possibly to result in failure of interception of oral communications by audio devices; and that authority was therefore necessary to install a video tape camera within the apartment to observe the various aspects of the illegal enterprise. The application recited that a single surreptitious entry to install both electronic devices was essential to avoid detection and to minimize the danger to those authorized to enter the apartment to install the video camera and bugging device.

According to the affiants, additional evidence was needed to demonstrate sufficient probable cause to arrest the high echelon members of the organization, who were the primary targets of their surveillance. Further in the application, the affiants related that an authorized search of the apartment would not reveal the source or method of the organization’s drugs and distribution, nor would it reveal sufficient information to destroy the organization; moreover, an authorized search of the subject apartment at that time would make it impossible to locate other of the organization’s stash houses. In their application, the affiants stated that the lessee of the apartment, Láveme Pickney, did not reside there; that she resided at another named address where her automobile was registered; and neither she nor her motor vehicle was ever observed at or near the subject apartment. The gas ¹⁸ and electric and telephone services were listed in Pickney’s name, but the telephone was disconnected.

Finding that the application conformed to all requirements of the Maryland and Federal Acts, as well as with the Fourth Amendment, Judge Allen issued an order authorizing surreptitious entry into the subject apartment to simultaneously install an audio listening device (a “bug”) to intercept oral communications and, for purposes of video surveillance, a small camera embedded into the ceiling of the apartment to record the illegal activities. 5 In a 22-page order, Judge Allen concluded that there was probable cause to believe that the controlled dangerous substances laws were being violated by individuals using the subject apartment; that the use of the audio and video devices was necessary and essential to gain evidence leading to the solution of these crimes and the prosecution of all individuals therewith connected. The order specified that evidence could not be otherwise obtained since alternate investigative methods had been tried and failed and will not succeed in the future, or were too dangerous to undertake. Pursuant to Judge Allen’s order, officers entered the air ducts of the apartment through the roof, shaved away part of the dry wall and implanted a miniature camera, focused on the dining room of the apartment. After several weeks of observation and twenty-five hours of recorded video tape, a search warrant was issued to search the apartment on August 7, 1984.

Both heroin and cocaine were seized. The appellants Ricks and DeShields were arrested within the apartment. Appellant Van Allen Lewis was also present in the apartment during the raid; he fled and was captured shortly thereafter. The appellants were charged in the Circuit Court for Baltimore City with possession with intent to manufacture and distribute heroin and cocaine.

Prior to trial, they ¹⁹ moved to suppress the evidence obtained through video surveillance, claiming that it had been obtained by an illegal search and seizure. They also maintained that video surveillance was precluded by the provisions of the Maryland Act, and particularly so because the State law was more restrictive than the Federal Act. The appellants argued that it was the public policy of this State to place greater restrictions on video surveillance than on the interception of less intrusive wire and oral communications, and hence the video tape records should be suppressed. The court (Bothe, J.) concluded that even though video surveillance was more intrusive than oral or wire interceptions, it was not within the ambit of the Act’s provisions and was thus not prohibited.

Nor, the court said, had a Fourth Amendment violation occurred. She found that appellants had standing to object, on Fourth Amendment grounds, to the use of the video surveillance; she nevertheless held that the search and seizure were lawful under Judge Allen’s order. At a subsequent jury trial, the appellants were convicted of the offenses charged and they appealed. Writing for the Court of Special Appeals, Chief Judge Gilbert determined that video surveillance of suspected criminal activity was not proscribed by either the Federal or Maryland Act.

The intermediate appellate court declined to consider appellants’ argument that video surveillance was conducted in violation of the Fourth Amendment. It said that the appellants “failed to demonstrate any violation of an interest of theirs that the Fourth Amendment was designed to protect” and therefore lacked standing to object. In this regard, the court noted that the appellants had admitted at the suppression hearing that they had no proprietary interest in the apartment. As the appellants maintained only that they had been invited to the apartment, and no other evidence being adduced, the court concluded that appellants had no legitimate expectation of privacy for their activities conducted upon the premises.

Ricks v. State, 70 Md.App. 287 , 520 A.2d 1136 (1987). Upon appellants’ petition, we granted ²⁰ certiorari to consider the important public issues raised in the case. IV It cannot be doubted, as appellants assert, that video surveillance is more intrusive than audio surveillance, and that in some particulars the Maryland Act is more stringent than its federal counterpart. Moreover, considerations of public policy, with obvious Orwellian overtones—those of Big Brother watching—are fully evident in this case, involving as it does the use of a camera to observe activities conducted behind closed doors in a residential apartment.

In light of these and other considerations, the appellants urge that the Legislature’s extensive statutory regulation and strict control of warrant procedures for the use of electronic surveillance command that a court order authorizing surreptitious non-consensual video surveillance and recording of conduct in a private place be declared invalid in the absence of an express statutory provision authorizing such surveillance. In this regard, the appellants say that the State, by seeking authorization for an intrusion more severe than those authorized by the Maryland Act, engaged in activity which the Legislature could not reasonably have intended to sanction. Any other conclusion, appellants argue, would result in the use of clandestine video surveillance without the careful controls the General Assembly required in the Maryland Act for less intrusive modes of electronic surveillance. Granted that the Maryland Act in some instances is more restrictive than the Federal Act, nevertheless there is nothing in either Act, express or implied, which prohibits or in any way undertakes to regulate video surveillance.

The legislative history underlying passage of the Maryland Act in 1977, while scant at best, demonstrates that video surveillance was never discussed, even though that method of investigation was then in known use by the police. See, e.g., Avery v. State, 15 Md.App. 520 , 292 A.2d 728 , cert. denied, 266 Md. 733 (1972), a case involving an unsuccessful ²¹ Fourth Amendment challenge to the use of a closed-circuit television camera to surreptitiously record the commission of a crime in the victim’s own apartment. 6 A number of federal courts, after considering the provisions of the Federal Act, have concluded that express statutory authorization is not required to conduct video surveillance. In United States v. Torres, 751 F.2d 875 (7th Cir.1984), cert. denied, 470 U.S. 1087 , 105 S.Ct. 1853 , 85 L.Ed.2d 150 (1985), the FBI secretly televised the activities of certain terrorists at two “safe houses” used by them to assemble bombs. There, the court order authorized both an audio device and hidden cameras to be installed in every room.

Video surveillance had been requested because of concern that audio surveillance alone might be neutralized by the terrorists playing loud music, utilizing code, or assembling the bombs in silence. The court first recognized the power of federal courts to issue conventional search warrants under Rule 41 of the Federal Rules of Criminal Procedure. It reasoned that this power, by extension, would also cover warrants for electronic surveillance, as would the common law powers of the courts to issue particularized warrants. The court rejected the defendants’ contentions that Title III deprived the federal courts of their general power to issue warrants for video surveillance.

Holding that video surveillance is not covered by Title III, the court explained: “It does not follow, however, that because Title III does not authorize warrants for television surveillance, it forbids them. The motto of the Prussian state—that everything which is not permitted is forbidden—is not a helpful guide to statutory interpretation. Television sur ²² veillance (with no soundtrack) just is not within the statute’s domain.” 751 F.2d at 880 . Furthermore, while acknowledging that at the time of the enactment of Title III, Congress probably had not considered videotaping, the court concluded that “[i]t would be illogical to infer from Congress’s quite natural omission to deal with a nonproblem that it meant to tie the federal courts’ hands when and if the problem arose.” Id. at 881 .

The court in Torres rejected the argument that the purpose of Title III to protect privacy interests mandated a prohibition of electronic eavesdropping not expressly authorized. It pointed to the dual purpose of Title III—not only to protect privacy interests, but also to facilitate law enforcement. 7 The court then concluded that only the Fourth Amendment covered video surveillance. In United States v. Biasucci, 786 F.2d 504 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 104 , 93 L.Ed.2d 54 (1986), the court held that visual electronic surveillance, this time of business offices, was not prohibited by Title III. There, individuals involved in a loan-sharking operation contended that videotapes obtained from a hidden camera ordered simultaneously with separate audio surveillance should have been suppressed as there was no statutory basis for the court’s order.

Rejecting this argument, the court reasoned, as in Torres , that although Title III did not expressly authorize such surveillance, neither did it prohibit it. The court said that “all that can be said is that Congress has not yet enacted any legislation explicitly authorizing domestic electronic video surveillance.” Id. at 508-09. In support of its analysis, the court pointed out that even though there was no statutory authority for wiretapping prior to the enactment of Title III, the Supreme Court held such court-ordered electronic surveillance permissible in ²³ Osborn v. United States, 385 U.S. 323 , 87 S.Ct. 429 , 17 L.Ed.2d 394 (1966), applying a Fourth Amendment analysis to the government’s conduct. The court in Biasucci then adopted the “compelling” reasoning of Torres , holding that television surveillance of private places may be authorized in appropriate circumstances if the demands of the Fourth Amendment are satisfied.

Again, in United States v. Ianniello, 621 F.Supp. 1455 (D.C.N.Y.1985), aff'd, 808 F.2d 184 (2d Cir.1986), the court addressed the validity of an order authorizing concealed cameras operating simultaneously with independent “bugs” to monitor the business premises of individuals suspected of loan-sharking and extortion. The application for the video surveillance was presented on the same record as the application for the audio portion, and the order correspondingly covered both forms of surveillance. Finding no merit in the argument that without express statutory authorization the video surveillance was constitutionally infirm, the court adopted the reasoning of Torres and found such surveillance constitutionally permissible. In the Matter of an Application for an Order Authorizing Interception of Oral Communications and Videotape Surveillance, 513 F.Supp. 421 (D.Mass.1980), the court approved an order authorizing contemporaneous oral and video surveillance of a private dwelling.

Noting that the proposed surveillance was “extraordinarily intrusive,” that at the time the statute was enacted wiretaps