State v. Mayes

Digges, J., delivered the opinion of the Court. Certiorari was granted in this consolidated criminal cause to review the judgments of the Court of Special Appeals upholding dismissal of the separate multi-count indictments returned against respondents James I. Mayes, Jacquelyn Mayes, and John W. Gooding. State v. Mayes, 39 Md. App. 635 , 387 A. 2d 794 (1978). Finding that the three indictments were not validly obtained under the federal wiretap law and, consequently, were properly dismissed, we will affirm that court’s determination.

Prior to a discussion of the reasons for our decision in this case, we think it helpful to digress briefly and set forth at least a thumbnail sketch of the workings and interrelationship of the federal and Maryland statutory provisions dealing with electronic surveillance that play a central role here. When it became clear in the wake of the United States 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), that there are constitutional strictures on both the state and national governments’ right to conduct electronic surveillance, Congress decided to confront the problem. Relying on its plenary power to control interstate commerce under section eight of article one of the United States Constitution, it enacted as a portion of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit.

Ill, §§ 801-804, 82 Stat. 197 , what is now popularly referred to as Title III. In seeking to protect the privacy of the individual while at the same time aiding in the enforcement of the criminal laws, see S. Rep. No. 1097,90th Cong., 2d Sess. 66-69 (1968), reprinted in [1968] U.S. Code Cong. & Ad. News 2112, 2153-56, the Congress insured that a uniform national standard would govern the use of electronic surveillance by including within Title Ill’s provisions standards for the use of wiretaps that the states, if they chose to allow their law ⁶²⁸ enforcement officials to undertake such surveillance, must, at a minimum, comply with but which they may, if they desire, make more restrictive.

See State v. Siegel, 266 Md. 256, 271 , 292 A. 2d 86, 94 (1972). The provisions of Title III, which now stand substantially as they did when the wiretaps in this case were executed, presently are codified in 18 U.S.C. §§ 2510-2520 (1976). In Maryland, from 1956 until 1977, electronic surveillance was permitted by the General Assembly under Md. Code (1974), §§ 10-401 to 408 of the Courts Article (previously codified as Md. Code (1957), Art. 35, §§ 92-99). These requirements were subsequently revised so that effective July 1, 1977, new provisions, now found at Md. Code (1974, 1978 Cum.

Supp.), §§ 10-401 to 412 of the Courts Article, control. Although there is some question in this case about which set of state statutory provisions should be applied — the earlier being in effect at the time of the application for and execution of the initial wiretap order, while the latter were in force at the time the parties presented to the circuit court the questions we find dispositive here — we need not determine the issue because we think that our conclusion is compelled by the minimum standards enunciated in the federal legislation. Examining the statutory sections of importance here, we find that under the terms of Title III an order issued by a state judicial officer authorizing a wiretap must enumerate the offenses for which there is probable cause to conduct surveillance, 18 U.S.C. § 2518 (3) (a) (1976) (Cts. Art. (1978 Cum.

Supp.), § 10-408 (c) (l)), 1 those crimes for which taps can be initiated being circumscribed by the statute itself. 18 U.S.C. § 2516 (2) (1976) (Cts. Art. (1978 Cum. Supp.), § 10-406). It was recognized by the Congress, however, that in the course of an authorized wiretap, evidence of “other offenses” not named in the original order might surface.

To provide for this contingency, in line with the act’s purpose of limiting the use of unauthorized wiretaps, it was statutorily ⁶²⁹ mandated that such evidence could be used as testimony in any state “proceeding” only if the government “as soon as practicable” sought and obtained judicial authorization for such further use. 18 U.S.C. § 2517 (3), (5) (1976) (Cts. Art. (1978 Cum. Supp.), § 10-407 (c), (e)). 2 Against this background, we now turn to our analysis of the instant case. Acting in response to a petition by the State’s Attorney, Judge William B. Bowie, in the Circuit Court for Prince George’s County, issued an ex parte order on October 27, 1976, authorizing the county police to use wiretaps to intercept the telephone conversations of James I. Mayes and others that allegedly were being made from a designated location and related to “illegal sports bookmaking and narcotics.” Based on the information from these taps, acquired between October 28 and November 18, 1976, a search warrant was obtained from Judge Bowie and executed on November 19, 1976.

The evidence procured as a result of this search, as well as the logs of the previously intercepted communications, was then presented to the grand jury and on March 23, 1977, that body returned indictments charging the respondents and others with various drug and gambling offenses, including possession of marihuana and phencyclidine (POP) and keeping a gaming table. Following the filing of the indictments, each of the respondents answered with a motion to suppress the evidence seized as a result of the November 19 search on the grounds that the initial wiretap order was invalid. At the circuit court hearing on the motions in August 1977, Judge Howard S. Chasanow denied the requests, but at the same time suggested to the parties that Judge Bowie’s original order ⁶³⁰ may not have been sufficiently broad to have authorized the disclosure to the grand jury of conversations dealing with marihuana, PCP, and gambling offenses other than sports bookmaking. The State responded to this intimation by filing a Petition for Disclosure with Judge Bowie pursuant to 18 U.S.C. § 2517 (5) (1976), Md. Code (1974), § 10-406 of the Courts Article, and Md. Code (1974, 1978 Cum.

Supp.), § 10-407 (e) of the Courts Article in which it acknowledged that the subject of the intercepted conversations possibly related to crimes other than those of illegal sports bookmaking and the sale of narcotics specified in the initial wiretap order and asked that it be given authority to use all evidence of illegal activities garnered from the taps. Judge Bowie conducted a hearing on this motion on October 18, 1977, and, after interpreting his October 1976 order as not contemplating the interception of conversations dealing with nonnarcotic drugs such as marihuana and PCP or conversations relating to illegal gambling of a kind other than sports bookmaking, declined to grant the Petition for Disclosure. As the basis of his refusal, Judge Bowie declared that the prosecution’s section 2517 (5) disclosure request, made nearly a year after the wiretap interceptions and after their use before the grand jury, had not been made “as soon as practicable” as required by statute. See 18 U.S.C. § 2517 (5) (1976) (Cts.

Art. (1978 Cum. Supp.), § 10-407 (e)). Encouraged by this ruling, respondents renewed their motions to suppress, this time incorporating with them requests that the indictments be dismissed. On November 2, 1977, Judge Chasanow, after concluding that he was bound by Judge Bowie’s ruling as to both the scope of the original order and the timeliness of the government’s disclosure petition, determined that the dismissal of all counts of the indictments was required.

Such a sanction was in order, according to the judge, because the State conceded that the grand jury had before it and could have utilized the intercepted conversations dealing with marihuana, PCP, and illegal gambling other than sports bookmaking when it considered each of the alleged violations that resulted in each of the counts of the indictments. ⁶³¹ Claiming authority under Md. Code (1974, 1978 Cum. Supp.), § 12-302 (c) (1) of the Courts Article to appeal the dismissal rulings, before the Court of Special Appeals the State urged reversal for three reasons: 1) Judge Bowie’s ruling was in error, 2) Judge Chasanow was incorrect in stating that he was obliged to follow Judge Bowie’s ruling, and 3) dismissal of the indictments was not the proper sanction for this type of violation of the wiretap statute. In affirming the circuit court, the Court of Special Appeals concluded, as to the first contention, that because the State did not appeal Judge Bowie’s October 1977 ruling within thirty days of its entry, as that court held it was statutorily entitled to do under Md. Code (1974, 1978 Cum. Supp.), § 10-408 (i) (3) of the Courts Article, it was bound by that order. 3 State v. Mayes, supra, 39 Md. App. at 641-42 , 387 A. 2d at 797-98 .

In addressing the second contention, the appellate court found that Judge Chasanow was likewise bound by Judge Bowie’s ruling on the Petition for Disclosure because denial of the petition was tantamount to granting a motion to suppress from which there was no de novo review at the trial court level. Id. at 642 [798] (applying Maryland Rule 736 f 2). Finally, the Court of Special Appeals held that dismissal of the indictments was the correct remedy in this case for the State’s improper use of the conversations not authorized to be seized under the original wiretap order. Id. at 643-45 [798-99], Before this Court the State has urged the same grounds for reversal it did before the intermediate appellate court, but in reaching what we conclude to be the correct disposition of the matter we do not consider either the extent to which Judge Chasanow was bound by Judge Bowie s determination 4 or the appealability, at the instance of the ⁶³² State, of the two circuit court rulings.

Rather, we will simply assume, without deciding, that such an appeal does lie and move on to a consideration of whether, under section 2517 (5), additional judicial authorization was needed prior to disclosure. In this regard, the State contends that because the evidence relating to PCP and marihuana was not evidence relating to “offenses other than those specified in the order of authorization or approval,” 18 U.S.C. § 2517 (5) (1976) (Cts. Art. (1978 Cum. Supp.), § 10-407(e)), there was no reason for obtaining subsequent section 2517 (5) authorization prior to its use before the grand jury and, as a consequence, the failure to obtain such authority has no impact on this case. 5 In support of this assertion the Attorney General first contends that the marihuana and PCP offenses were encompassed within the initial wiretap authorization of October 27, 1976.

Referring to that document, the State points out that in its preamble and again in its conclusion the order alludes to violations of the laws dealing with “controlled dangerous substances.” 6 This, it asserts, shows that Judge ⁶³³ Bowie authorized the seizure of conversations relating to marihuana and PCP because even though neither is a “narcotic drug” each comes within the statutory definition of a “controlled dangerous substance.” See 21 U.S.C. §§ 802 (6), (16), 812 (c) (1976); Md. Code (1957, 1976 Repl. Yol. & 1976 Supp.), Art. 27, §§ 277 (f), (q), 279. In further support of this contention, the State asks us to examine the police affidavit that was submitted to procure the initial wiretap order in which, it urges, it was made clear that the authorities were seeking evidence as to crimes dealing with controlled dangerous substances rather than only those relating to narcotics. After examining in full Judge Bowie’s October 1976 order together with the State’s supporting affidavit, we accept his determination that this order was not designed to encompass the seizure of conversations relating to all controlled dangerous substances and gambling offenses but only to the investigation of criminal conduct involving violations of the narcotics laws and illegal sports bookmaking.

In reaching this conclusion we begin with the premise that an unambiguous wiretap order does not require interpretation and any expansion or contraction of its scope at the expense of its plain meaning will not be permitted. Here, however, a construction of the order was authorized because, we conclude, ambiguity exists as to its reach. This is demonstrated by a comparison of the earlier referred to language relied on by the State, note 6 supra, with the following pivotal provision of the order: IT IS, THEREFORE, This 27th day of October, 1976, ORDERED that pursuant to the attached Petition of the State’s Attorney for Prince George’s County, [the Prince George’s County Police were authorized] ... to intercept and record telephonic wire communications ... dealing with violations of the laws regulating illegal sports bookmaking and ⁶³⁴ narcotics____Authority under this Order shall not terminate automatically upon obtaining or intercepting the first of the described conversations, there being probable cause to believe that repeated communications will occur with many other persons concerning the illegal sports bookmaking operation and narcotics law violations and the conspiracy to violate the above laws, and other matters related to violations of the laws regulating illegal sports bookmaking and narcotics laws. [(Emphasis supplied.)] Nor is this ambiguity resolved by reference to the affidavit used to obtain the order. While to a limited extent an affidavit used in applying for authorization to conduct wiretap surveillance, if it is incorporated by reference or more fully defines a term or terms used in the order, might be of some aid in interpreting the initial order, here the affidavit only compounds the ambiguity because it likewise uses both the terms “narcotic” and “controlled dangerous substance” without further particularization or explanation.

When, as here, ambiguity exists as to the extent of the authority granted by the wiretap order, we think the trial judge’s interpretation is entitled on appeal to great weight in resolving such an ambiguity (again assuming appellate review is permissible at the instance of the State), particularly when the reviewing judge was the author of the original order. Thus, we accept Judge Bowie’s ruling that the offenses for which authorization to tap was given were limited to those involving narcotics and did not encompass marihuana, PCP, and other nonnarcotic drugs. Moreover, the result reached here, by confining the scope of the order to the narrower of the two possible interpretations, comports with the legislative purpose of protecting the privacy of the individual. See Omnibus Crime Control and Safe Streets Act of 1968, Pub.

L. No. 90-351, tit. Ill, § 801 (b), (d), 82 Stat. 197 . Possibly anticipating this determination, the State argues in the alternative that the term “narcotics” should be read broadly to allow for the use of conversations with respect to any related drug crime, including marihuana and PCP ⁶³⁵ possession and sale, without the necessity of further judicial authorization under section 2517 (5). We, however, decline to accept this suggested expansion of the scope of the October 1976 order, for to do so would undermine the protection afforded individual privacy by the requirements of Title III.

The Congress certainly indicated its intent that, within certain limits, state judges could broadly delineate the offenses for which they were granting authorization to tap, see 18 U.S.C. § 2516 (2) (1976) (Cts. Art. (1978 Cum. Supp.), § 10-406), 7 yet, in doing so, we do not think Congress was seeking to limit the extent to which a judge, in an initial order, could curb the general scope of a wiretap which is statutorily permitted so that the seizure of any evidence relating to an offense other than that specifically named could not be used in a state proceeding prior to obtaining further judicial authorization. Supporting this conclusion is the decision of the United States Court of Appeals for the Seventh Circuit in United States v. Brodson, 528 F. 2d 214 (7th Cir. 1975).

In Brodson the government had sought and obtained authorization to intercept conversations dealing only with violations of 18 U.S.C. § 1955 , which prohibits the operation of an illegal gambling business in interstate commerce. Subsequently, the wiretap evidence intercepted pursuant to that order was used by the government to obtain an indictment against the ⁶³⁶ defendant for transmitting wagers and wagering information in interstate commerce in violation of 18 U.S.C. § 1084 . The United States District Court for the Eastern District of Wisconsin, on motion of the defendant, dismissed the indictment because the government had not obtained authorization under section 2517 (5) to use the evidence in charging the section 1084 violation. On appeal, the government contended that no authorization was necessary “because the evidence secured under the Section 1955 order and authorization and used in that prosecution applied equally well to the Section 1084 prosecution.” 528 F. 2d at 216 .

The federal Seventh Circuit, however, found it to be “of no consequence ... because the two offenses are wholly separate and distinct; they involve dissimilar elements and require different evidence, even though some of it might overlap because both concern illegal gambling.” Id. The basis for this more restrictive definition of “other offenses” under section 2517 (5), the court stated, was “to carry out the purpose of the Congress and make certain that the privacy of the individual is protected [as provided in Title III].” Id.; accord, United States v. Marion, 535 F. 2d 697, 705-06 (2d Cir. 1976). We think this federal precedent portends a similar result here. While the Attorney General, no doubt, would crave a more lenient, less literal interpretation of what constitutes an “other crime,” wiretap evidence of which has to be judicially authorized under section 2517 (5) before it can be used, we can but agree with the Marion court when it cogently stated: Strict compliance with the requirements of § 2517 (5) and the other strictures imposed by Title III is ... essential.

Congress carefully circumscribed utilization of the occasionally useful but potentially dangerous law enforcement tools of electronic surveillance in an effort to comply with the Fourth Amendment and to “protect effectively the privacy of wire and oral communications [and] the integrity of court and administrative proceedings.” To ignore or gloss over these restrictions, or view them as mere technicalities to be read in such a fashion as to ⁶³⁷ render them nugatory, then, is to place in peril our cherished personal liberties. [ 535 F. 2d at 706 (citations and footnote omitted).] See State v. Siegel, 266 Md. 256, 273-74 , 292 A. 2d 86, 95-96 (1972). But see C. Fishman, Wiretapping and Eavesdropping § 166, at 246-49