State v. Baldwin

Murphy, C. J., delivered the opinion of the Court. Eldridge, J., concurs in the result. This case concerns the legality of an ex parte wiretap order issued by a judge in the Circuit Court for Talbot County, pursuant to the Maryland Wiretapping and Electronic Surveillance Law (the Act), Maryland Code (1974, 1980 Repl. Vol.) §§ 10-401 through 10-412 of the Courts and Judicial Proceedings Article.

We granted certiorari primarily to determine whether the wiretap order complied with the provisions of § 10-408 (f) of the Act and, if not, the sanction to be applied for noncompliance. Section 10-408 (f) provides: "Whenever an order authorizing interception is entered pursuant to this subtitle, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports ⁶³⁷ shall he made at the intervals the judge requires.” (Emphasis added.) Section 10-408 (!) relates to the suppression of the contents of illegally obtained communications and provides, in pertinent pari: "(1) Any aggrieved person m any trial, hearing, or proceeding . .. before any court. .. may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that: (i) The communication was unlawfully intercepted; (ii) The order of authorization under which it was intercepted is insufficient on its face, or was not obtained or issued in strict compliance with this subtitle; or (iii) Tlie interception was not made in conformity with the order of authorization.” (Emphasis added.) 1 The wiretap order was issued on April 13, 1978, for a period not to exceed thirty days, and authorized a wiretap of the telephone of the Atlantic Glass Factory in Easton, Maryland, to obtain evidence of violations of the laws relating to Controlled Dangerous Substances. Among other recitals, the order provided that the intercepting police officers "shall be required to report to the Court on what progress has been made towards the achievement of the authorized objective and the need for continued interception at a time period and in a maimer as designated by the Court.” The issuing judge did not, however, specify the time or times, or the manner in which the police were required to report to him on the progress of the wiretap.

Notwithstanding the absence of any such directives, the monitoring agents made weekly progress reports in writing to the issuing judge over a four-week period. The substance of four conversations intercepted as a result of the wiretap ⁶³⁸ was used by the police to aid in establishing the existence of probable cause for the issuance of a search warrant for the glass factory, but none of these conversations was reproduced or mentioned in any of the progress reports made to the court. Evidence seized during the execution of the search warrant at the glass factory implicated Hugh Hartman Baldwin, Jr. in violations of the laws relating to Controlled Dangerous Substances. A multi-count criminal information was thereafter returned against Baldwin, charging, among other offenses, that he did possess and manufacture designated Controlled Dangerous Substances at the glass factory on May 22, 1978, and that he operated a common nuisance at that location on that date.

Prior to Baldwin’s trial, he moved to suppress the incriminating evidence derived from the wiretap on the ground that the order was invalid for noncompliance with the periodic reporting requirements of § 10-408 (f) of the Act. The trial court denied the motion. Baldwin was subsequently convicted by a jury of seven counts of violating the Controlled Dangerous Substances laws and operating a nuisance house. The Court of Special Appeals reversed Baldwin’s convictions, finding that the wiretap order was "legally infirm” because it was not issued in strict compliance with the periodic progress report requirement of § 10-408 (f) of the Act.

Baldwin v. State, 45 Md. App. 378 , 413 A.2d 246 (1980). The court rejected the view taken by the trial judge that the failure of the issuing judge to designate the time or times at which the progress reports were to be made was a post-interception variance with the statutory requirements, and that because there had been substantial compliance with the statute, the evidence obtained from the wiretap was properly admissible. Speaking through Chief Judge Gilbert, the Court of Special Appeals said that § 10-408 (f) requires that ’’The issuing judge shall provide in the order for the interception that the police report to the judge at designated intervals on the progress being made by the police in attaining their objective.”Id. at 393 (emphasis in original). ⁶³⁹ Viewing the violation of § 10-408 (f) as either a pre-interception violation or a violation committed during the course of the execution of the wiretap order, as distinguished from a post-interception violation, the court concluded that "strict compliance with the State statute is mandated,” citing, among other authorities, State v. Siegel, 266 Md. 256 , 292 A.2d 86 (1972). Id. at 393 .

Siegel involved an interpretation of the federal law governing wiretapping, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1976). In that case, the wiretap order, issued pursuant to former Maryland law, Code (1974), §§ 10-401 through -408 of the Courts Article, failed to meet controlling federal statutory requirements that the surveillance was to be conducted over a limited time period; that it was to automatically terminate upon the attainment of the objective of the surveillance; and that the interception of nonpertinent conversations was to be minimized. Because of these omissions in the wiretap order, the Court held that the evidence obtained from the wiretap had to be suppressed because "the surveillance here failed to meet certain preconditions designed to protect appellee’s constitutional rights.” 266 Md. at 274 . Judge Digges, for the Court, said that the federal law "sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” Id.

(emphasis in original). Before us the State argues that while § 10-408 (f) requires that a wiretap order contain a provision for periodic progress reports to be made to the issuing judge, the section does not require that the intercept order itself specify the designated reporting intervals. The State points out that the directive contained in § 10-408 (f) is a limited one, i.e., "the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception.” The order was in compliance with this provision, the State argues, and nothing in the remaining provision of § 10-408 (i) — that reports be made "at the intervals the judge requires” — mandates that the ⁶⁴⁰ reporting intervals, or the manner of reporting, be designated in the wiretap order. The State maintains that the issuing judge cannot be expected reasonably to predict in advance, and incorporate in the order, the time, number and nature of progress reports necessary to effectuate the protective intent of § 10-408 (f).

It is suggested that to require the inclusion of such provisions in the order itself would necessitate a new order, upon a new application, where the issuing judge determines, in the course of his supervision of the wiretap, to require more or less intensified reporting, as the evolving circumstances may dictate. The State claims that the wiretap order in this case was issued in strict compliance with § 10-408 (f) because it directed that progress reports be made to the issuing judge. The order being valid on its face, the State urges that suppression of the evidence derived from the wiretap was erroneous. The State next argues that failure of the issuing judge to actually set time intervals for the progress reports was not, as in Siegel , a precondition to issuance of the order and because the monitoring agents actually made weekly progress reports, the "substantial compliance” standard of Spease and Ross v. State, 275 Md. 88 , 338 A.2d 284 (1975), is applicable.

In that case, the Court considered the requirement, among others, of § 2518 (8) of the federal wiretap statute that a person named in an intercept order be served with an inventory within ninety days of the wiretap’s termination notifying him of certain information pertaining to the wiretap. The Court held that there had been substantial compliance with the federal law because the person named in the intercept order had actual knowledge of the required information within twelve days of its termination and no prejudice resulted from failure to serve him with the inventory contemplated by the statute. The Court declined to suppress evidence obtained from the wiretap, noting that strict compliance with the federal provision was not required because it "does not play a central role in the statutory scheme and is not a precondition to obtaining intercept authority under [United States v.] Giordano[, 416 U.S. 505 , 94 S. Ct 1820 , 40 L. Ed. 2d 341 (1974),] and Siegel.” 275 Md. at 108 . The State thus argues that even if § 10-408 (f) was ⁶⁴¹ violated, the section does not play a central role in the statutory scheme and is not a precondition to obtaining intercept authority, and because there was substantial compliance with the requirements of the section by reason of the actual filing of progress reports by the monitoring police agents, suppression was not an appropriate remedy.

Finally, the State urges that if § 10-408 (i) requires that the wiretap order itself designate the intervals in which progress reports are to be made, as the Court of Special Appeals held, the holding should be given only prospective application. This is so, according to the State’s argument, because until this case § 10-408 (i) was not viewed as requiring the order authorizing interception to contain an explicit statement of the designated intervals in which progress reports were to be made. In State v. Mayes, 284 Md. 625, 627 , 399 A.2d 597 (1979), we briefly sketched "the workings and inter-relationship” of the federal and Maryland statutory provisions dealing with wiretapping. We there noted, as we did in Siegel, that in enacting the federal law the Congress insured that a uniform minimum national standard would govern the use of wiretaps, which the states could adopt by statute so long as the standards were not more lenient than those contained in the federal law, although they could be made more restrictive.

The present Maryland Act was adopted in 1977 after our decisions in Siegel and Spease and Ross; it was modeled upon the federal act and extensively tracked its provisions. In some particulars, however, the Maryland Act was made more restrictive than the federal law. For example, § 10-408 (f) of the Act — the provision involved in this case — is phrased in mandatory language, i.e., the wiretap order "shall” require reports which "shall” be made at the intervals the issuing judge requires. The federal counterpart of § 10-408 (f) is 18 U.S.C. § 2518 (6) and is written in permissive terms, i.e., the wiretap order "may” require reports to be made to the issuing judge. 1 ⁶⁴² In State v. Bailey, 289 Md. 143 , 422 A.2d 1021 (1980), we considered the legality of a wiretap order issued under the Act, which did not contain a directive as required by § 2518 (4) (e) of the federal law and § 10-408 (e) of the Maryland Act to terminate the wiretap upon the attainment of the authorized objective. 2 Judge Cole, for