Seal v. State

McDONALD, j., concurring. I join the Court’s judgment because I agree with the result. Athough the Majority opinion expresses its rationale well, I would reach that result for a different reason. ⁸⁵ As the Majority opinion explains, in order for the recorded undercover phone calls between Donald and Mr. Seal to be admissible in a Maryland court, Donald had to be making the calls at the prior direction, and under the supervision, of a law enforcement officer. At a minimum, then, there must be a law enforcement officer acting in a law enforcement capacity supervising the calls.

In my view, it is not necessary in this case to undertake the difficult assessment of how much supervision is sufficient in the myriad types of cases that might arise under this exception in the wiretap statute — inevitably, the analysis will be described as “case by case.” In this case, however, the simple fact is that Donald made the undercover calls from West Virginia to Virginia and, as best I can tell from the record, no one with authority to function as a law enforcement officer in West Virginia was supervising those calls in any fashion. Detective Copeland is a Montgomery County police officer. As such, she is authorized to act as a law enforcement officer in Montgomery County and, with certain limitations not relevant here, to conduct investigations throughout the State of Maryland. See Maryland Code, Criminal Procedure Article (“CP”), § 2-102.

She may also be able to exercise law enforcement powers in other states in particular circumstances, to the extent authorized by Maryland law and by the law of the other state. 1 But nothing in the record indicates that ⁸⁶ Detective Copeland was authorized to do so in this case or that she otherwise had authority to supervise a criminal investigation in West Virginia. Thus, even if she was standing over Donald’s shoulder the entire time he made the calls, he would not have been acting under the supervision of a law enforcement officer, 2 Nor is there any indication in the record that any law enforcement officer in West Virginia was involved in the investigation. 3 Law enforcement officers are entrusted