Ricks v. State

GILBERT, Chief Judge. The major issue in this appeal is whether the police may employ surreptitious non-consensual video surveillance in tracking suspected criminal activity. Three minor issues are also presented, but they are eclipsed by the magnitude of the video surveillance question. This case stems from an extensive narcotics investigation by the Baltimore City Police Department and the Federal Drug Enforcement Administration.

Utilization of pen registers, physical surveillance, and “wiretap” orders disclosed a suspected organization involved in violations of controlled dangerous substances (CDS) laws. The appellants—James A. Ricks, Kevin R. DeShields, and Van Allen Lewis—were identified as part of the narcotics distribution organization. In the Circuit Court for Baltimore City Judge Milton B. Allen on June 8, 1984, issued orders authorizing the use of electronic listening and recording devices as well as video surveillance and recording devices at 2500 Edgecomb Circle North, Apartment I, in Baltimore City. The site was suspected of being a “processing house” or “cut house” where CDS were diluted and packaged for street sale.

Judge Allen’s order was extended, and the investigation continued. Armed with a search and seizure warrant, the police in August 1984 entered the apartment and arrested Ricks, DeShields, and Lewis along with other individuals. The appellants were charged, among other things, with possession of heroin and cocaine with intent to manufacture or distribute CDS. Prior to trial Ricks, DeShields, and Lewis moved to suppress the video tape recordings as being in violation of federal and Maryland law.

Judge Elsbeth Levy Bothe of the Circuit Court for Baltimore City denied the motion. A jury subsequently found the three men guilty of possession of heroin and cocaine with intent to manufacture or distribute. Ricks, DeShields, and Lewis were sentenced to impris ²⁹¹ onment for terms of thirty, twenty, and ten years respectively. This appeal ensued.

The appellants posit a pentad of issues, videlicet: “1. Does the Maryland Legislature’s extensive codification of procedures for the use and control of electronic surveillance and wiretapping command that a warrant to authorizing [sic] surreptitious non-consensual video surveillance and recording in a private place is invalid, since there is no statutory provision authorizing such surveillance? 2. Was the video surveillance of the subject premises conducted in violation of the Fourth Amendment, requiring suppression of its fruit? 3. Did the trial court err when it refused to instruct the jury regarding specific intent? 4.

Did the trial court err when it permitted a key state’s witness to repeatedly render his opinion as to the identity of individuals on a videotape recording presented to the jury? 5. Did the trial court err in admitting into evidence two handgun holsters and a piece of metal alleged, by an unqualified expert, to be a .45 caliber rifle barrel?” I. Video Surveillance and Maryland Wiretap and Electronic Surveillance Law The appellants argue: “[T]he warrant purporting to authorize surreptitious video surveillance in a private place was invalid under Maryland law since the general assembly clearly intended to place controls on all manner of secret, electronically aided surveillance by law enforcement in areas not in plain view.” Maryland’s Wiretap and Electronic Surveillance Act, Md.Courts and Judicial Proceedings Code Ann., §§ 10-401 to -413, regulates the interception of wire or oral communications. “Intercept” is defined as the “aural acquisition of the contents of any wire or oral communication through the ²⁹² use of any electronic, mechanical, or other device.” Id. at § 10-401(3) (emphasis added). The statute is an “offspring of [and] modeled after” the federal wiretap statute. 1 State v. Bailey, 289 Md. 143, 151-52 , 422 A.2d 1021, 1026 (1980). Appellants readily admit that video surveillance is not regulated by the federal act, United States v. Biasucci, 786 F.2d 504, 508-09 (2nd Cir.), cert. denied, — U.S.-, 107 S.Ct. 104 , 93 L.Ed.2d 54 (1986); United States v. Torres, 751 F.2d 875, 880-81 (7th Circ.), rev’g. 583 F.Supp. 86 (N.D.Ill.1984), cert. denied, 470 U.S. 1087 , 105 S.Ct. 1853 , 85 L.Ed.2d 150 (1985); In the Matter of an Application for an Order Authorizing Interception of Oral Communications and Videotape Surveillance, 513 F.Supp. 421, 422-23 (D.Mass.1980); People v. Teicher, 52 N.Y.2d 638, 652-53 , 422 N.E.2d 506, 513 , 439 N.Y.S.2d 846, 853 (1981), and they acknowledge that the Maryland statute does not “expressly contemplate video surveillance.” 2 Nevertheless, the appellants suggest that inasmuch as the Maryland act is “more restrictive on the use of electronic surveillance methods than [its federal counterpart, 3 it] should be read to forbid a Judge from authorizing non-consensual video searches of private places.” We have an entirely different view.

What appellants suggest not only diverges from the plain meaning of the wiretap and electronic surveillance law, but ²⁹³ it also imports to the Legislature a motive that does not appear to have been considered by that body, much less intended. The Court of Appeals in Coleman v. State, 281 Md. 538, 546 , 380 A.2d 49, 54 (1977), made manifest: “It is elementary that a statute should be construed according to the ordinary and natural import of the language used unless a different meaning is clearly indicated by its context, without resorting to subtle or forced interpretations for the purpose of extending or limiting its operation. State v. Fabritz, 276 Md. 416 , 348 A.2d 275 (1975); Slate v. Zitomer, 275 Md. 534 , 341 A.2d 789 (1975). In other words, a court may not as a general rule surmise a legislative intention contrary to the plain language of a statute____” See Harris v. Mayor of Baltimore, 306 Md. 669, 673 , 511 A.2d 52, 54 , aff’g, 66 Md.App. 397 , 504 A.2d 657 (1986).

Appellants contend that the warrant for video recording was invalid “since there is no statutory provision authorizing such surveillance.” In sum, appellants seem to assert that what is not expressly permitted is implicitly proscribed. We think, however, that “the motto of the Prussian State— that everything which is not permitted is forbidden—is not a helpful guide to statutory interpretation.” United States v. Torres, 751 F.2d at 880 . Video surveillance of suspected criminal activity is not proscribed or regulated by the Maryland Wiretap and Electronic Surveillance Act.

II

Video Surveillance and Fourth Amendment Appellants next aver that the “video surveillance of the subject premises was conducted in violation of the Fourth Amendment requiring suppression of its fruit.” We do not address the merits of the argument because the appellants have failed to demonstrate any violation of an interest of theirs that the Fourth Amendment was designed to protect. ²⁹⁴ The appellants were the proponents of the motion to suppress and, therefore, had the burden of establishing that their Fourth Amendment rights were violated through the use of the video surveillance. Rakas v. Illinois, 439 U.S. 128 , 131 n. 1, 99 S.Ct. 421, 424 , 58 L.Ed.2d 387, 393 (1978). To satiate that burden required appellants to show that they had a “legitimate expectation of privacy in the invaded place.” Id. at 143 , 99 S.Ct. at 430 , 58 L.Ed.2d at 401 . See Katz v. United States, 389 U.S. 347, 359 , 88 S.Ct. 507, 515 , 19 L.Ed.2d 576, 586 (1967); Bates v. State, 64 Md.App. 279 , 283-84 494 A.2d 976, 978-79 (1985).

The Supreme Court in Rakas explained that “[legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” 439 U.S. at 144 n. 12, 99 S.Ct. at 431 n. 12. Judge Rosalyn Bell in McMillian v. State, 65 Md.App. 21, 32-33 , 499 A.2d 192, 197-98 (1985), reviewed factors that are considered in determining whether a legitimate expectation of privacy existed. Those factors include: (1) possessory interest in the premises; (2) right to and length of stay at the searched premises; (3) limitation, if any, on access to the searched premises; (4) right to exclude others from the searched area; (5) precautions, if any, taken to maintain privacy; and (6) subjective expectation of privacy in the area searched. At the suppression hearing in the instant case, the appellants