Shingleton v. State

Gilbert, C. J., delivered the opinion of the Court. Cole Porter, in his well-known song, “I Get a Kick Out of You,” proclaimed that “[s]ome get a kick from cocaine.” This appeal arises from the arrest and conviction of some suppliers of that “kick.” Historically, this case began with an application for a “wiretap” order in Baltimore County. Judge Marvin Land issued the order pursuant to 18 U.S.C. §§ 2510-2520 (1970). After installation of the “tap,” the police learned of a ring of people dealing in controlled dangerous substances spread from Woodlawn to Essex in Baltimore County to Lusby in Calvert County and beyond.

The ring did, in fact, have Florida, Arizona, and Mexican connections. Additional wiretap applications, founded upon the information obtained from the Baltimore County intercept order, led directly to the issuance of other electronic interception orders in Calvert County. The issuing judge authorized taps on a telephone listed to Appellant Clarence Michael Shingleton, a public “telephone booth located at... [the entrance to the] Chesapeake Ranch Club,” and a telephone leased to Appellant Debra Ann Martin, all of Calvert County. From the record we infer that the appellants, Shingleton and Martin, resided in the same building.

The result of the electronic surveillance of the three (3) telephones led to the conclusion on the part of the Maryland State Police that Martin, Shingleton, and Appellant Charles Edward Bechtel were engaged in the nefarious business of bringing cocaine into Maryland and distributing it, contrary to the provisions of Md. Ann. Code art. 27, §§ 276-302. The State Police learned that on October 15, 1976, Martin was to drive her van-type motor vehicle to Dulles Airport in ⁵³⁰ Virginia for the purpose of meeting Shingleton, who was transporting cocaine and marijuana into Maryland. After the van, with Martin and Shingleton aboard, left Dulles and traveled into Maryland, it was halted by the State Police at the Capitol Center, Prince George’s County. The occupants were arrested.

The vehicle and its contents were seized and searched, and it was ascertained that Shingleton was indeed carrying cocaine and marijuana into this State in a briefcase which was opened by one of the troopers. The vehicle was transported to a garage where it was thoroughly searched. It is enough to know, without endeavoring to recount all the evidence produced on behalf of the State against Bechtel, that the taped conversations, if admissible into evidence, were more than enough to demonstrate that Bechtel was an integral part of a conspiracy to violate this State’s narcotics and dangerous substances laws. A jury, in the Circuit Court for Calvert County, convicted Shingleton and Bechtel of conspiracy both to possess cocaine and to possess it with intent to distribute it.

All three (3) appellants were found not guilty of the count charging conspiracy to distribute. The jury was unable to agree as to Martin’s involvement in the conspiracy case. Shingleton and Martin were convicted of the possession of other proscribed controlled dangerous substances. All three (3) appellants have carried their grievance to this Court.

Once here, the appellants parted company in their method of attack upon the judgments of the circuit court. Shingleton and Martin have elected to pursue a four-fold attack upon the judgments of the circuit court, while Bechtel mounts a fullscaled eleven-pronged salvo against it. We shall deal first with the issues posed in the Martin-Shingleton appeal. I. “The trial judge erred in admitting evidence derived from unlawful wiretaps.” The appellants correctly assert that the electronic interception in this case was controlled by Title III of the ⁵³¹ Omnibus Crime Control and Safe Streets Act of 1968.

( 18 U.S.C. §§ 2510-2520 (1970)). 1 Section 2518(l)(c) provides that each application for an electronic surveillance warrant shall contain “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. . ..” We, in Calhoun v. State, 34 Md. App. 365, 374 , 367 A. 2d 40, 44-45 (1977), referred to the legislative history of the Act, which discloses: “ ‘Subparagraph (c) requires a full and complete statement as to whether or not normal investigative procedures have been tried and failed or why these are unlikely to succeed if tried, or to be too dangerous. ... The judgment would involve a consideration of all the facts and circumstances. Normal investigative procedure would include, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspirational groups by undercover agents or informants. Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely.

What the provision envisions is that the showing be tested in a practical and common sense fashion. ’ [1968] U.S. Code Cong. & Admin. News at 2190 (emphasis added) (citations omitted).” We said in Calhoun that: “Courts are not free to infer from the mere presentation of an application or petition, supported by an affidavit, that normal investigative procedure will not work. There must be specific compliance ⁵³² with 18 U.S.C. § 2518 . The affidavit must demonstrate to the issuing judge that normal investigative measures have been tried and failed, or they are unlikely to be successful under the circumstances, or that their use is too perilous to the investigators.

That a prior affidavit for another time and place so demonstrates, even when incorporated by reference, is not compliance with the strict requirements of the Act.” 34 Md. App. at 376-77 , 367 A. 2d at 46 . (Original emphasis.) The record reflects that the issuing judge determined that normal investigative methods would not work, and for that reason he issued the orders as to the Martin and Shingleton telephones. The judge based his finding upon the affidavit in support of the State’s Attorney’s application for the order. Thus, it is to the affidavit that we must look to determine whether it complied with section 2518(l)(c).

Trooper First Class, Iran M. Perkins, Intelligence Division, Narcotic Section, Maryland State Police, supplied a forty-one (41) page affidavit in which he recounted the history of the investigation into this particular narcotics ring. He related that as a result of an order issued by Judge Land in the Circuit Court for Baltimore County, a pen register was placed on the telephone line of one Edgar Allen Crouch of Woodlawn. The register showed thirty (30) calls in three (3) months to the telephone listed to Martin. Shingleton was disclosed by informants to be Crouch’s supplier.

Crouch was observed by an informant “obtaining drugs from Shingleton,” and Shingleton told the informant that Shingleton, in turn, received the drugs from Appellant Charles Edward Bechtel. Crouch, Shingleton, and Bechtel all had records of narcotics violations. The house in which Martin and Shingleton lived was “approximately 500 feet off of the road down a long dirt driveway. ... The house is not visible from the road.” The pen register led to a tap on Crouch’s telephone.

From that tap it was learned that Shingleton would meet Crouch in Crofton, Maryland, and furnish Crouch with narcotics. The actual transfer was witnessed by three (3) police officers. Perkins, in his affidavit, said that he and other police ⁵³³ personnel had “conducted surveillances of... Shingleton,...

Martin and ... [their] residence.” Because of the location of the residence, “the occupants of the surrounding area, as well as Shingleton and Martin, become extremely suspicious of any and all strange persons or vehicles that are continually in the area.” A fixed surveillance was virtually impossible. Establishing a conspiracy among the appellants was not possible without the use of the tap because Bechtel was a fugitive from Maryland 2 and did not enter the State. While ample evidence had already been obtained to prosecute successfully Shingleton, absent the electronic interception, the police would be without a method of gathering evidence to establish the conspiracy involving Bechtel. The affidavit specifically recited that it was Perkins’ opinion that other investigative methods would not work.

The issuing judge agreed and so do we. We think the affidavit clearly established the reasons why it was necessary to use the wiretap. The physical location of the property in which appellants Shingleton and Martin resided and Bechtel’s being in another State made it manifest that the only method that could be successfully used in bringing about the apprehension of all three (3) on the conspiracy charges was electronic surveillance. In our view, the affidavit passes muster under United States v. Giordano, 416 U. S. 505 , 94 S. Ct. 1820 , 40 L.Ed.2d 341 (1974) and Calhoun v. State, supra.

We perceive no error. Our task, however, does not stop here because appellants advance a second reason why the wiretap evidence should not have been received. At 3:35 p.m., on Friday, September 10, 1976, one of the State Troopers assigned to the electronic surveillance of the Martin-Shingleton telephone, called the judge on the telephone and informed him, according to the judge’s memorandum, that the trooper “had learned from the conversations previously intercepted” that at “5:00 PM today (1700 hrs)” a telephone call would be received by Shingleton “at a pay phone in the Ranch Club area.” The subject of the ⁵³⁴ call was reportedly “prices and times of delivery of CDS material and that there was not sufficent'. [s/e] time to prepare and submit a request to tap this phone to intercept this call in the usual way. Because of the time required to set up the aparatus [sic\, the distance from where he was to where I was and the fact that because of a prior committment [s/c] I would not be available more than another half hour / verbally authorized him to intercept this call upon condition that all of this would be reduced to writing in due course. ” (Emphasis supplied.) The State seeks to justify the verbal request for and the oral granting of the tap on the basis of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified as 18 U.S.C. § 2518 (7).

That section provides: “Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that — ‘(a) an emergency situation exists with respect to conspiratorial activities threatening the national security interest or to conspiratorial activities characteristic of organized crime that requires a wire or oral communication to be intercepted before an order authorizing such interception can with due diligence be obtained, and ‘(b) there are grounds upon which an order could be entered under this chapter to authorize such interception, may intercept such wire or oral communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate ⁵³⁵ when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire or oral communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application.” (Emphasis supplied.) 3 The State’s argument will not withstand scrutiny. There is absolutely nothing in the record to show that the trooper who sought the “emergency” intercept order was “specially designated ... by the principal prosecuting attorney of” Calvert County.

Moreover, the alleged “conspiratorial activities” did not threaten the national security nor does the alleged criminal activity of the appellants fall within the ambit of the meaning of “Organized crime” as that term was defined by the Congress in Title I of the Omnibus Crime Control and Safe Streets Act of 1968. “Organized crime” is defined in 42 U.S.C. § 3781 (b) (1970), to mean “the unlawful activities of the members of a highly organized, disciplined association engaged in supplying illegal goods and services, including but not limited to gambling, prostitution, loan sharking, narcotics, labor racketeering, and other unlawful activities of members of such organizations,” We agree that the alleged conspiracy among Bechtel, Martin, and Shingleton might be considered to be “organized,” but their purported illegal conduct falls short of being a “highly organized, disciplined association.” The definition that the Congress employed conjures up mental images of crime syndicates presided over by a “Godfather,” “don,” “boss,” “chief,” and the like. It may or may not be a part of the Mafia, Camorra, Cosa Nostra or any of their American cousins, but it most certainly does not cause one to ideate a conspiratorial trio whose purpose is to violate successfully this State’s ⁵³⁶ controlled dangerous substances laws. In our view, the Congressional definition of organized crime does not contain sufficient elasticity to allow it to be stretched to include the type of conspiracy charged in the instant case. Because the verbal application and oral order thereon is not within the scope of the exception, 18 U.S.C. § 2518 (7), to the obtaining of a written intercept order, it was absolutely worthless.

It flew straight into the face of the Omnibus Crime Control and Safe Streets Act of 1968 despite the judge’s good intent. The federal act prescribes, in section 2518(1), that: “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____” 4 (Emphasis supplied.) Except for provisions of section 2518(7) permitting verbal application and orders, which we have found to be inapplicable to the case sub judice, there are no other exigent circumstances, real or fancied, which allow an oral intercept order. The fact that the Congress mandated that such orders be “in writing upon oath or affirmation,” section 2518(1), evidences that the Congress desired, under all circumstances save section 2518(7), in which the federal act was employed, 5 to guarantee proper, before the fact, judicial review of the affidavit, application and the proposed order. State v. Siegel, 266 Md. 256, 274 , 292 A. 2d 86, 95 (1972), declares “[t]he statute [Title III 18 U.S.C. §§ 2510-2520 ] sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” (Original emphasis.) See also Poore v. State, 39 Md. App. 44, 47 , 384 A. 2d 103, 106 (1978).

In Poore, we pointed out the distinction between the strict pre-order compliance dictated by Siegel and the substantial post-order compliance, absent prejudice to the accused, sanctioned by Spease v. State, 275 ⁵³⁷ Md. 88, 338 A. 2d 284 (1975). Poore v. State, 39 Md. App. at 51-61 , 384 A. 2d at 108-14 . Unquestionably, the verbal order in the case subjudice was governed by the strict pre-order compliance prescribed by Siegel . The order fails to meet that requirement and is, as we have already noted, totally invalid.

We look with much disfavor upon the procedure used in the instant case, both as to the application for the order and the authorization of the interception. We note that had the application and order been made subsequent to July 1,1977, there would not have been the slightest argumenta! justification for the issuance of such an order because the Maryland law does not recognize the “emergency situation” exception specified in 18 U.S.C. § 2518 (7). The Fourth Amendment, as has been said many times over, prohibits “unreasonable government intrusions into ... legitimate expectations of privacy.” United States v. Chadwick, 433 U. S. 1, 7 , 97 S. Ct. 2476, 2481 , 53 L.Ed.2d 538, 546 (1977). The Congress, in its capacity as representative of the populace wrote into the Omnibus Crime Control and Safe Streets Act of 1968, what it perceived to be adequate safeguards of the right of the people to be free from governmental or private electronic interloping.

It carefully spelled out the judicial function of prior approval of wire or electronic eavesdropping and interception, as well as the post-order procedure to be followed. Simultaneously, it forbade private persons to manufacture, possess and distribute devices “primarily useful for the purpose of surreptitious interception of wire or oral communications____” 18 U.S.C. § 2512 (1). When individual constitutional rights are rendered nugatory in the interest of expediency, then the Constitution, itself, may as well be thrown upon a scrap pile, and we declare that cases are to be decided on the basis of what is in the best interest of the State. Such a step would be, in actuality, a giant-sized stride away from the concept formulated by our ancestors, when they adopted the Bill of Rights, and a synchronous move toward the non-democratic principle that ⁵³⁸ what is good for the State is good for everybody.

We emphatically decline to take any step toward that end. If the facts in this case ended with the illegal interception of that particular telephone call, we would quickly strike down the order and direct that the evidence derived therefrom be suppressed. The record discloses, however, that while there was an interception made as a result of the oral order, there was no transcript of that call nor was its content made known to the jury. While it might be argued that the unlawfully overheard conversation formed the base of a pyramid, there is nothing but pure conjecture to support such an hypothesis.

Indeed, in the light of the admissible evidence contained in fifty-eight (58) transcriptions, many of which were made before the oral authorization under attack, the pyramid theory disintegrates. Consequently, even though the