State v. Siegel

Orth, J., delivered the opinion of the Court. We find: (1) Ch. 119, 18 U.S.C. §§ 2510-2520 , entitled Wire Interceptions and Interception of Oral ⁴⁴⁷ Communications (the federal act), is constitutional ; 1 (2) a judge of the Supreme Bench of Baltimore City, presiding in the Criminal Court of Baltimore, and a judge of a Circuit Court of a county of this State may enter orders authorizing interceptions of wire or oral communications; (3) the entering of such orders, all matters with regard to the execution of them, and the use and disposition of property seized under them shall be in conformity with the provisions of the federal act; (4) such orders may be entered only when the interception of wire or oral communications may provide evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs or any conspiracy to commit any of such offenses; (5) no interception of a wire or oral communication shall be made without an order authorizing it being first obtained. The occasion for these findings is the appeal by the State from the grant on 30 November 1970 by Harris, J. presiding in the Criminal Court of Baltimore of a motion by Maurice T. Siegel to dismiss the indictment returned against him. The indictment was filed on 14 December 1969 and presented that from 1 January 1965 to 12 November 1969 Siegel, an attorney at law, and Robert London, a bail bondsman, unlawfully conspired to violate the lottery laws.

The indictment was the result of information gleaned from the interception of telephonic ⁴⁴⁸ communications of London. London’s telephonic communications were intercepted under the authority of three orders entered by Harris, J. on 6 October, 13 October and 5 November 1969. Judge Harris noted in granting the motion to dismiss that the orders had been entered under the provisions of Code, Art. 27, § 125A, 2 Code, Art. 35, § 94, 3 and “Title III of the Omnibus Crime and Control and Safe Streets Act of 1968, 18 U.S.C. Section 2516 .” The reasons he gave for dismissing the indictment as to Siegel were those “stated in paragraph No. 7 of Siegel’s Motion to Dismiss.” Paragraph 7 alleged that the contents of the telephonic and oral communications had been unlawfully intercepted and disclosed. As reasons why the interceptions and disclosures were unlawful, it included the reasons set forth in a “Motion to Suppress Intercepted Communications and All Evidence, Information, Leads and Fruits Derived Therefrom, and for Other Relief” filed by Siegel by incorporating them by reference.

Among those were that the federal act and the State acts were unconstitutional and that the orders were not entered in conformance with the statutes in any event. We shall discuss our findings and then apply them to the case before us. 4 THE CONSTITUTIONALITY OF THE FEDERAL ACT Four cases decided by the Supreme Court, one at the end of 1966 and the others in 1967, cleared the way for ⁴⁴⁹ the enactment of legislation giving sanction to the interception of wire and oral communications 5 —Berger v. New York, 388 U. S. 41 , Warden v. Hayden, 387 U. S. 294 , Katz v. United States, 389 U. S. 347 , and Osborn v. United States, 385 U. S. 323 . In Berger the Court considered the constitutionality of a New York statute providing for the interception of conversations by wiretapping and eavesdropping methods. N.Y. Code Grim.

Pro. § 813 -a (1967). It found expressly that conversation was within the ambit of Fourth Amendment protection and held that the use of electronic devices to capture it was a “search” within the meaning of that Amendment. 388 U. S. at 51 . It found in short that the New York law was constitutionally defective because it made a “blanket grant of permission to eavesdrop * * * without adequate judicial supervision or protective procedures.” 388 U. S. at 60 . Specifically it was offensive in four areas.

(1) Eavesdropping was authorized (a) without requiring belief that any particular offense had been or was being committed, and (b) without the need that the conversations sought be particularly described. 5 6 “As with general warrants this leaves too much to the discretion of the officer exercising the order.” At 59. (2) Eavesdropping was authorized for a two months period with extensions of that period. This was the equivalent of a series of intrusions, searches and ⁴⁵⁰ seizures to a single showing of probable cause and prompt execution was avoided. An extension was authorized on a mere showing that it was “in the public interest”, and this is insufficient without a showing of “present probable cause” for the extension.

(3) There was no termination date on the eavesdrop, once the conversation sought was seized, the suspension of the surveillance being left entirely in the discretion of the officer. (4) There was no requirement for notice as in conventional warrants and this defect was not overcome by requiring a showing of exigent circumstances. Nor did the statute provide for a return on the warrant, thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. Hayden created a suitable environment for statutory surveillance of communications by obliterating the distinction between “mere evidence” and evidence amounting to fruits and instrumentalities of the crime, or contraband.

Prior to Hayden “mere evidence” was not subject to seizure. Gouled v. United States, 255 U. S. 298 (1921). Hayden made all incriminating evidence subject to seizure so long as it had a connection with the suspected criminal behavior. Katz has been cited by legal commentators as authority for four propositions. 7 (1) Conversations as well as physical evidence were subject to seizure pursuant to the Fourth Amendment.

This was a logical extension of Hayden which discredited “[t]he premise that property interests control the right of the Government to search and seize * * *.” 389 U. S. at 353 . (2) The Fourth Amendment protects a person from unreasonable seizure of his conversations from a place where he has a reasonable expectation of privacy — “* * * what he seeks to preserve as private, even in an area accessible to the ⁴⁵¹ public, may be constitutionally protected.” Id., at 351-352 . (3) Expectation of privacy does not depend on whether or not the intrusion constitutes a physical trespass. “For the Fourth Amendment protects people, not places.” Id., at 351 . (4) Surveillance of communications to accommodate “the legitimate needs of law enforcement” may be authorized by judicial order issued in accordance with appropriate Fourth Amendment safeguards.

Id., at 356 . 8 9 The safeguards that were lacking in the surveillance in Katz were that the Government agents were not required (a) before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate; (b) during the conduct of the search to observe precise limits established in advance by a specific court order; (c) after the search, to notify the authorizing magistrate in detail of all that had been seized.® Berger and Katz each relied in large extent on Osborn, 388 U. S. at 56-58 ; 389 U. S. at 355 . Osborn held that under sufficiently “precise and discriminating circumstances”, a federal court may empower government agents to employ a concealed electronic device “for the narrow and particularized purpose of ascertaining the ⁴⁵² truth of the * * * allegations” of a “detailed factual affidavit alleging the commission of a specific criminal offense.” 385 U. S. at 329-330 . Discussing that holding in Berger, 388 U. S. at 57 , the Court said that “the order authorizing the use of the electronic device” in Osborn “afforded similar protections to those * * * of conventional warrants authorizing the seizure of tangible evidence.” Through those protections, “no greater invasion of privacy was permitted than was necessary under the circumstances.” See 389 U. S. at 355 . In the light of Berger, Hayden, Katz and Osborn a judicially approved interception of communications could be constitutionally permissible if conducted under rigid Fourth Amendment controls.

It appears that the federal act is a congressional response, the final version of which was drafted to meet the standards of Berger and Katz . S. Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968). And see record of floor debate, 114 Cong.

Rec. 90th Cong. 2d Sess., pp. 6186-6292. We think it meets those standards. We observe preliminarily that in Alderman v. United States, 394 U. S. 165 , the constitutionality of the federal act was upheld tacitly if not specifically. Delivering the opinion of the court, Mr. Justice White stated with respect to the sanctity of Fourth Amendment rights: “In this respect we are mindful that there is now a comprehensive statute 10 making unauthorized electronic surveillance a serious crime.

The general rule under the statute is that official eavesdropping and wiretapping are permitted only with probable cause and a warrant. Without experience showing the contrary, we should not assume that this new statute will be cavalierly disregarded or will not be enforced against transgressors.” 394 U. S. at 175 . In considering the constitutionality of the federal act we first note that only Fourth Amendment guarantees ⁴⁵³ are involved. Significantly the Supreme Court did not place any reliance either in Berger or Katz on rights flowing from any of the other amendments.

We do not feel that fear of surveillance of communications when that surveillance is circumscribed under Fourth Amendment standards amounts to a denial of free speech under the First Amendment. Nor do we think that it violates Fifth Amendment provisions because it seizes incriminating testimonial statements. In the absence of compulsion by the authorities such seizure does not bring the right against self-incrimination into play. See Hoffa v. United States, 385 U. S. 293 ; Todisco v. United States, 298 F. 2d 208 (9th cir. 1961), cert. denied, 368 U. S. 989 (1962) , 11 And it seems that only in certain circumstances, as when a person has been taken into custody or otherwise deprived of his freedom by the authorities, would the Sixth Amendment right to assistance of counsel in any event preclude an electronic surveillance.

Usually there would be no custodial interrogation to invoke dictates of Miranda v. Arizona, 384 U. S. 436 . And v/ith respect to privileged communications between attorney and client, § 2517 (4) of the act provides: “No otherwise privileged wire or oral communication intercepted in accordance with or in violation of, the provisions of this chapter shall lose its privileged character.” We conclude that only under the Fourth Amendment is the validity of interception of communications to be tested. We have found that in the light of Berger, Hayden, Katz and Osborn a judicially approved interception of communications is constitutionally permissible if conducted under the rigid Fourth Amendment controls. Our inquiry turns to the question whether such interceptions authorized by the federal act are under the requisite Fourth Amendment controls.

Certainly the federal act requires all the safeguards ⁴⁵⁴ which were lacking in Katz . Those safeguards concerned the intervention of the judicial process. In the Katz surveillance the government agents were not required to present their estimates of probable cause for detached scrutiny by a neutral magistrate before commencing surveillance; under the act surveillance may only be by judicial order issued upon application which includes a full and complete statement by the applicant of the facts and circumstances relied on by him to justify his belief that an order should be issued. § 2519 (1) (b). In Katz the agents were not required during the surveillance to observe precise limits established in advance by a specific court order; the act requires that the order specify such precise limits. § 2518 (4) and (5).

The agents in Katz were not compelled, after the search, to notify the authorizing judge in detail of all that had been seized; under the act immediately upon the expiration of the period of the order the recordings of the communications shall be made available to the issuing judge and sealed under his directions. § 2518 (8) (a). The act is in full conformance with Katz . We next consider the federal act in relation to the four areas in which Berger found the New York Act offensive. The New York Act authorized surveillance without requiring belief that any particular offense had been or was being committed and without the need that the conversations sought be particularly described.

The federal act requires “a full and complete statement of the facts and circumstances relied on by the applicant [for the order authorizing surveillance], to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted.” § 2518 (1) (b). Patently the ⁴⁵⁵ particularity requirement as to the offense being committed, read into the probable cause provision of the Fourth Amendment, is met by the act, as is the particularity requirement expressly set out as to the place to be searched. The requirement of particularity as to the things to be seized begs for discussion. 12 The question is what the Court meant when it indicated that the communications, conversations, or discussions to be seized had to be “particularly described.” See note 6 supra. Certainly, as Mr. Burpo pointed out in his article in the Tennessee Law Review, note 1 supra, “There is an obvious difficulty in specifying the seizure of nonexistent conversations that is to take place at some future, undetermined point of time.” 88 Tenn.

L. Rev. at 28. But the act prescribes that the applicant for the surveillance order must show probable cause that an individual is committing, has committed, or is about to commit a particular offense and that particular communications concerning that offense will be obtained through the interception. § 2518 (3) (a) and (b). We think that the showing of the probability of these facts meets the particularity requirement of the constitution in the circumstances created by the uniqueness of communications surveillance. We believe Berger requires no more than that.

We think that to say that specificity is impossible because the property to be seized, that is, the conversation, is nonexistent would be a total subversion of the Fourth Amendment. See Beal v. Skaff, 418 F. 2d 480 (7th Cir. 1969) in which a search warrant designated certain incriminating, physical evidence and the place where it would probably be in the future, although it had not yet arrived there at the time the warrant was sought. The court held the warrant authorizing the search of the place designated was valid. The second and third areas in which Berger found the ⁴⁵⁶ New York Act offensive was the two month period authorized for the surveillance and the failure to prescribe a termination date once the property had been seized.

It felt that this was the equivalent of a series of intrusions, searches and seizures to a single showing of probable cause, avoided prompt execution, and left the suspension of the surveillance in the discretion of the government agent. The federal act meets these objections. By § 2518 (5) no order may authorize interception “for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days.” And as to execution the order may require reports to be made to the issuing judge showing what progress had been made toward achievement of the authorized objective and the need for continued interception. § 2518 (6). Berger also found wanting the provision in the New York statute permitting an extension of the surveillance if “in the public interest.” The federal act permits extensions of the original order only upon application made in accordance with the requirements for the original application, § 2518 (5), plus the added requirement that there must be a statement setting forth the results thus far obtained or a reasonable explanation of the failure to obtain such results. § 2518 (1) (f).

And for an extension there must be a reestablishment of probable cause. The period of the extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. And see § 2518 (1) (d). We see no Fourth Amendment violations in the light of these provisions.

Berger noted, as the fourth area, that there was no requirement for notice in the New York statute as in conventional warrants, although it recognized that this was necessary because the success of the interception depended on secrecy. However, it complained that this defect was not overcome by a showing of special facts, but on the contrary permitted uncontested entry without any showing of exigent circumstances. The federal act over ⁴⁵⁷ comes the lack of notice by requiring a showing of exigent circumstances. Section 2518 (1) (c) provides that the application 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.” Berger also pointed out that the New York Act did not provide for a return on the warrant “thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties.” 388 U. S. at 60 .

As we observed in discussing the federal act in relation to Katz , the federal act requires a return of the recording of the communications to the judge issuing the order and they are to be sealed under his directions. § 2518 (8) (a). It further requires the issuing judge to report to the Administrative Office of the United States Courts within thirty days after the expiration of an order or each extension, designated prosecuting authorities to report to such Office each January and such Office to report to Congress each April. § 2519. And see § 2518 (9). We believe that the federal act cures all the defects enumerated in Berger.

There are two other areas covered by the federal act with respect to which we deem comment advisable. One is under § 2511 (3) which exempts from the statutory controls certain matters within the constitutional power of the President. We have no need and do not express an opinion as to the constitutionality of these provisions. The other is under § 2518 (7) which, as distinguished from § 2511 (3), does not exempt surveillance of communications from the statutory controls, but authorizes such surveillance without antecedent justification.

But the authorization is carefully circumscribed. Such surveillance is permissible only when the government agent who may apply for an order reasonably determines that “an emergency situation exists with respect to conspiratorial activities threatening the national security ⁴⁵⁸ 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 there are grounds upon which an order could be entered. There must then be an order approving the interception made in accordance with the statute within 48 hours after interception has occurred or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier.

If the application for approval is denied or interception is terminated without an order being issued the contents of the communication intercepted shall be treated as having been obtained in violation of the statute. And when an application for order of approval is denied the issuing judge shall cause an inventory to be filed on the persons named in the application and “such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice.” § 2518 (8) (d). In the light of these limitations we do not think the search authorized without antecedent justification is unreasonable. It is our view that the authorization to the states to search and seize wire and oral communications provided and restricted by the federal act is constitutional. 13 See United States v. Cantor, 328 F. Supp. 561 (E. D. Pa., 1971) ; United States v. Sklaroff, 323 F. Supp. 296 (S. D. Florida, 1971) ; United States v. Escandar, 319 F. Supp. 295 (S. D. Florida, 1970). 14 ⁴⁵⁹ THE MARYLAND STATUTES There is no question but that the federal act is controlling in state proceedings.

Section 2515 provides: “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceedings in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” However, the federal act is not self-executing as far as the states are concerned. While the principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, may apply to a State court judge of competent jurisdiction for an order authorizing an interception, he may do so only if so “authorized by a statute of that State.” The State court judge may grant such an order only in conformity with the federal act and “with the applicable State statute.” Such order may issue only with respect to designated crimes — “murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.” § 2516 (2) (emphasis supplied). Likewise a state may initiate an interception without antecedent authority in ⁴⁶⁰ an emergency situation under § 2518 (7) only if “acting pursuant to a statute of that State.” We conclude from the provisions referring to a state statute that all that is required for a state validly to permit interception of wire and oral communications is to have in effect a statute authorizing its principal prosecuting attorney or the principal prosecuting attorney of any of its subdivisions to apply to one of its judges of competent jurisdiction for an order of interception. Without this authorization any interception of communications by the State would be in violation of the federal act.

With this authorization the federal act takes over and controls the state action except as to certain matters now discussed. We construe the language of § 2516 (2), providing that the state judge “may grant in conformity with section 2518 of this chapter [titled “Procedure for interception of wire or oral communications”] and with the applicable State statute” to mean that the State may require procedures that are more restrictive than those spelled out in § 2518 of the federal act but in the absence of such statutory provisions the procedures are pursuant to § 2518. Also the State may authorize by appropriate legislation interception with respect to crimes other than “murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs” and conspiracy to commit any of them, but these other crimes are limited to crimes dangerous tp life, limb, or property, and punishable by imprisonment for more than one year specifically designated in an applicable State statute. If the State so designates any such other crimes, then the order may issue with respect to conspiracy to commit them also.

But if there is no applicable State statute designating other crimes, the State order may issue only for the crimes spelled out in § 2516 (2). Further, if the State desires to authorize interception without antecedent authority it must grant such authority by statute. Again, if it does so it may make the requirements more restrictive but not more liberal. If it grants the authority with ⁴⁶¹ out spelling out the requirements, § 2518 (7) controls.

If there is no provision in a State statute for interception without antecedent authority such interception by the State is not permissible. Maryland has now in effect two statutes dealing with the interception of communications. Code, Art. 35, § 92-99 (ch. 116, Acts 1956) concern wiretapping — interception of wire communications, telephonic and telegraphic. Code, Art. 27, §§ 125 A-C (ch. 706, Acts 1959) and § 125 D (ch. 201, Acts 1965) concern electronic devices — interception of oral communications.

Each authorizes a judge of a circuit court and a judge of the Supreme Bench of Baltimore City to enter an order authorizing interception. Art. 35, § 94 (a) ; Art. 27, § 125 A (b). With respect to the wiretapping statute the application for the order may be made by the Attorney General or any State’s Attorney. With respect to the electronic devices statute the application may be made only by a State’s Attorney.

These two statutes provide the authorization required by the federal act to make application for an interception order. A judge of a circuit court and a judge of the Supreme Bench of Baltimore City are each a judge of “competent jurisdiction” for each is a judge of a court of “general criminal jurisdiction.” 18 U.S.C. § 2510 (9) (b). 15 Thus there is compliance with the dictate of § 2516 (2) of the federal act, enabling the valid interception of communications in Maryland. As we have found that a judicially approved interception of communications is constitutionally permissible if conducted under Fourth Amendment controls, it is patent that the mere authority to apply for judicial approval is constitutional. Since there are statutes in this jurisdiction as required by the application provisions of § 2516 (2) of the federal act, the constitutionality vel non of those provisions of this State’s statutes concerning the requirements with ⁴⁶² respect to the application and the grant of the order is not material.

In other words those provisions of the State statutes in that regard which are repugnant to the federal act as not as restrictive as the provisions of the federal act are pre-empted by the federal act which prevails over the repugnant provisions. Although there is in this State the requisite statutory authority for the application and entering of an order authorizing the interception of wire or oral communications with respect to the offenses specifically set out in § 2516 (2) of the federal act, there is no statutory designation in Maryland of any “other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year.” Nor is there statutory provision in this State for subsequent approval of an interception of a wire or oral communication made without antecedent authority. Under § 2518 (7) of the federal act application may be made for such approval only when such interception was made pursuant to a statute of the State. Thus it is that we find that the various State’s attorneys in this State, and the Attorney General to the limited extent above set out, have authority to apply to a judge of the circuit court of a county or a judge of the Supreme Bench of Baltimore City, presiding in the Criminal Court of Baltimore, for an order and extensions thereof authorizing the interception of wire or oral communications.

An order authorizing such interception may be entered only with respect to the offenses of murder, kidnapping, gambling, robbery, bribery, extortion, dealing in narcotic drugs, marihuana or other dangerous drugs, and any conspiracy to commit any of those offenses. The application, the order, extensions thereof and all procedures with regard thereto and with regard to the interception of communications and procedures thereafter, including disclosure and admissibility of the contents and evidence derived therefrom in