State v. Siegel

Digges, J., delivered the opinion of the Court. This case points up the great problems both legal and moral that we must again ponder in the wake of mankind’s continuing scientific advancement — an advancement that staggers the imagination with its potential for good but causes us pause for fear that we may create “Frankenstein’s” monster 1 and be unable to channel its growth. This is not a new or even unique quandary but one which most recently came into sharp focus with the advent of the atomic age. Nuclear energy offers the promise of reliei to a large portion of the earth’s population by alleviating such pressing problems as famine and plague but it also portends the very real menace of total destruction because of the weaponry it has produced.

The industrialization of most of the world, while offering a life style unparalleled in the history of civilization, has also polluted much of nature’s beauty and threatens to contaminate the very air we breathe. This same dichotomy applies to the development of electronic equipment. The benefits accruing to society are innumerable but the possibility of abuse is considerable. The issue now before ²⁵⁸ this Court concerns electronic surveillance, more especially the wiretap.

On October 26, 1969, the State’s Attorney for Baltimore City, Charles E. Moylan, “upon his own authority pursuant to Article 27, Section 125A and Article 35, Section 94, Annotated Code of Maryland, 1957 edition, as amended, and pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 [ 18 U.S.C. §§ 2510-20 ]” petitioned the Supreme Bench of Baltimore City to authorize “the use of electronic, mechanical or other devices and equipment to intercept and record telephonic wire communications pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968; Article 27, Section 125A, Annotated Code of Maryland, 1957 edition as amended; Article 35, Sections 92 through 99, Annotated Code of Maryland, 1957 edition as amended; and the Fourth Amendment of the Constitution of the United States.” The application alleged that Maurice T. Siegel, appellee, and Robert London were conspiring to violate the lottery laws of this State, Maryland Code (1957, 1971 Repl. Vol.), Art. 27, §§ 38, 356-58, and 360-67. Judge Charles D. Harris issued the requested order permitting the State Police to intercept specified telephone lines from 11:00 a.m. October 6, 1969 to 6:00 p.m.

October 10, 1969, so as to gather evidence of the illegal activities. Following expiration of this original authorization, renewal orders were issued by Judge Harris on October 13 and again on November 5, 1969. All told the wires were tapped for a total of twenty-one days intercepting 1448 conversations. 2 ²⁵⁹ On the basis of this electronically acquired evidence, an indictment was returned on November 14, 1969, jointly charging Siegel, a member of the bar, and London with conspiracy to violate the lottery laws of the State. 3 The appellee filed a motion to suppress all the intercepted conversations and on November 30, 1970 Judge Harris (the initial issuing authority) so ordered. He based his decision on Siegel’s claim, “That the indictment is founded upon the contents of telephonic and oral communications unlawfully intercepted by the State ... in violation of the Defendant’s rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, and of the Maryland Declaration of Rights, and of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.” From that ruling the State unsuccessfully appealed to the Court of Special Appeals.

(State v. Siegel, 13 Md. App. 444 , 285 A. 2d 671 (1971).) We granted certiorari. Several issues are presented for our consideration but under our view of the case we need only discuss the following two: (i) Are the provisions of the Omnibus Crime Control and Safe Streets Act constitutional and properly implemented in Maryland by the provisions of Code (1957, 1965 Repl. Vol.), Art. 35, §.§ 92-99, and Code (1971 Repl. Vol.), Art. 27, §§ 125A-D?

(ii) Were the wiretap orders of Judge Harris void for failure to comply with the provisions of Title III ? CONSTITUTIONALITY To begin with it is necessary for us to determine whether Title III is in violation of the Fourth Amend ²⁶⁰ ment of the Constitution of the United States. 4 Siegel contends that the Omnibus Crime Bill is facially unconstitutional because it fails “to prescribe adequate standards as to the duration, particularity, and judicial supervision of court-ordered wiretapping.” In responding to this claim we must first observe that any statute which trespasses upon “The right of the people to be secure in their persons, houses, papers, and effects . . .” must be viewed with a jaundiced eye. The right to privacy is not only a keystone to our legal philosophy but also one of the most cherished ideals of our form of democracy. It is a concept which should foster security in the minds of our citizenry and not foster anxiety that they will be subjected to excessive governmental intrusion. 5 Under the Constitution there is no place in this country for an unfettered police force such as terrorized Germany and Italy during the 1930’s and 1940’s and which runs rampant today in many other parts of the world.

It would be intolerable for the spectre of recrimination to silence the dialogue and dissent which is so necessary to the lifeblood of our society. In these scientifically sophisticated times the distinct possibility of “Big Brotherism” 6 is apparent. We live in a world which has the capability not only to monitor our conversations, to “bug” our houses, but soon probably to delve into our innermost thoughts. To allow any of these things to occur without ²⁶¹ the strictest of controls would utterly destroy the basis of this nation’s existence.

We recognize of course that the Fourth Amendment itself restricts the rights of which it speaks. Its guarantees are broad but not boundless. United States v. U. S. Dist. Ct. E. D. Mich., 407 U. S. 297, 314 , 32 L.Ed.2d 752 , 92 S. Ct. 2125 (1972).

In entirety it provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Supreme Court of the United States, Warden, Maryland Penitentiary v. Hayden, 387 U. S. 294 , 18 L.Ed.2d 782 , 87 S. Ct. 1642 (1967), recently discussed the historical background of the Fourth Amendment. There, Mr. Justice Brennan stated for the Court: “We have examined on many occasions the history and purposes of the Amendment. It was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of ‘the sanctity of a man’s home and the privacies of life,’ from searches under indiscriminate, general authority. Protection of these interests was assured by prohibiting all ‘unreasonable’ searches and seizures, and by requiring the use of warrants, which particularly describe ‘the place to be searched, and the persons or things to be seized,’ thereby interposing ‘a magistrate between the citizen and the police,’ . . .” Id. at 301 (citations omitted).

The question now before us is whether the federal statute was drawn in conformity with these requirements. The long and undistinguished history of eavesdropping can undoubtedly be traced to man’s earliest beginnings and at common law the practice was condemned as a ²⁶² nuisance. 4 Blackstone’s Commentaries, 1570, Ch. 13 (Lewis ed. 1897). Originally, the act was accomplished by someone listening “under walls or windows or the eaves of a house, to harken after discourse, and thereupon to frame slanderous and mischievous tales . . . Blackstone, supra.

However, this crude methodology quickly became outmoded. On May 24, 1844, Samuel F. B. Morse telegraphed the rather prophetic message, “What hath God wrought”, and from then on every advancement noted in telecommunications has been received by a like response in the ability to surreptitiously intercept. To combat this threat the first statute prohibiting wiretapping was passed as early as 1862 and since that time such laws have proliferated. 7 The Supreme Court heard its initial wiretap case in 1928, Olmstead v. United States, 277 U. S. 438 , 72 L. Ed. 944 , 48 S. Ct. 564 (1928). There, Mr. Chief Justice Taft, for the Court, said: “The language of the [Fourth] Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office.

The intervening wires are not part of his house or office, any more than are the highways along which they are stretched. This court, in Carroll v. United States, 267 U. S. 132 , 149 .. . declared: ‘The 4th Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner which will conserve public interests as well as the interests and rights of individual citizens.’ * * * We think, therefore, that the wire tapping ²⁶³ here disclosed did not amount to a search or seizure within the meaning of the 4th Amendment.” Id. at 465-66. Subsequent to Olmstead , there were several other decisions involving wiretaps and “bugging” in which the Supreme Court adhered to its “no trespass” doctrine. Goldman v. United States, 316 U. S. 129 , 86 L. Ed. 1322 , 62 S. Ct. 993 (1942) ; On Lee v. United States, 343 U. S. 747 , 96 L. Ed. 1270 , 72 S. Ct. 967 (1952).

The earliest indication of change was in Silverman v. United States, 365 U. S. 505 , 5 L.Ed.2d 734 , 81 S. Ct. 679 (1961), where the Court held that “bugging” which involved a trespass, even though technical, violated the Fourth Amendment. However, the radical departure waited until 1967 for Katz v. United States, 389 U. S. 347 , 19 L.Ed.2d 576 , 88 S. Ct. 507 . There, Mr. Justice Stewart stated for the majority: “We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling.” Id. at 353. In that opinion the Court also said: “Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any ‘technical trespass under . . . local property law.’ Silverman v. United States, 365 U. S. 505, 511 , 5 L.Ed.2d 734, 739 , 81 S. Ct. 679 , 97 A.L.R.2d 1277 .

Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people — and not simply ‘areas’ — against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” Id. at 353 (emphasis added). Katz is but one of a trilogy of eavesdropping cases ²⁶⁴ the Supreme Court decided during 1966 and 1967 which we must now consider in determining the constitutionality of Title III. The other two are Osborn v. United States, 385 U. S. 323 , 17 L.Ed.2d 394 , 87 S. Ct. 429 (1966) and Berger v. New York, 388 U. S. 41 , 18 L.Ed.2d 1040 , 87 S. Ct. 1873 (1967). Congress, in passing the Omnibus Crime Bill, unquestionably intended it as the offspring of this troika and they were faced with no small task.

As Mr. Justice Clark observed for the Court in Berger : “It is said that neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment’s requirements. If that be true then the ‘fruits’ of eavesdropping devices are barred under the Amendment. On the other hand this Court has in the past, under specific conditions and circumstances, sustained the use of eavesdropping devices.” Id. at 63 . We now address ourselves to whether Congress was successful in its battle.

The constitutionality of Title III has not yet been adjudicated by the Supreme Court, although a number of lower federal courts have decided the issue. 8 But it is quite clear that wiretapping is permissible ²⁶⁵ under appropriate circumstances. Katz, supra; Berger, supra. In Berger v. New York, 388 U. S. 41 , the Court held a state law unconstitutional because that “statute’s blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.” Id. at 60 . The Supreme Court found four basic faults with the New York act.

First, “eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the ‘property’ sought, the conversations, be particularly described.” Id. at 58-59 . Secondly, “authorization of eavesdropping for a two-month period is equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. . . . Moreover, the statute permits, and there were authorized here, extensions of the original two-month period — presumably for two months each — on a mere showing that such extension is ‘in the public interest.’ Apparently the original grounds on which the eavesdrop order was initially issued also form the basis of the renewal. This we believe insufficient without a showing of present probable cause for the continuance of the eavesdrop.” Id. at 59 .

Thirdly, “the statute places no termination date on the eavesdrop once the conversation sought is seized. This is ²⁶⁶ left entirely in the discretion of the officer.” Id. at 59-60 . Finally, “the statute’s procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances.

Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does 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.” Id. at 60 . While Berger dealt with an overbroad statute, Katz v. United States, 389 U. S. 347 , involved a wiretap that was invoked without judicial authorization. There, the Court stated: “[T]he Fourth Amendment protects people, not places.

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Id. at 351 (citations omitted). The Court further said that the absence of physical penetration no longer “forecloses Fourth Amendment injury.” And it discredited the premise that property interests are controlling as to whether the government has the right to search and seize. Id. at 353 .

The majority concluded that the wiretap was impermissible because it did not have judicial sanction. Even though the federal agents used restraint, “the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before com ²⁶⁷ mencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order.

Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.” Id. at 356-57 . Osborn v. United States, 385 U. S. 323 , was decided prior to either Berger or Katz , and was relied upon by each in significant measure. It was not a wiretap case but rather involved the tape recording of a conversation by one of its two participants.

In permitting the evidence thus obtained, Mr. Justice Stewart, speaking for the majority, based the decision squarely on Lopez v. United States, 373 U. S. 427 , 10 L.Ed.2d 462 , 83 S. Ct. 1381 (1963). 9 He said: “[I]n response to a detailed factual affidavit alleging the commission of a specific criminal offense directly and immediately affecting the administration of justice in the federal court, the judges of that court jointly authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth of the affidavit’s allegations. As the district judges recognized, it was imperative to determine whether the integrity of their court was being undermined, and highly undesirable that ²⁶⁸ this determination should hinge on the inconclusive outcome of a testimonial contest between the only two people in the world who knew the truth — one an informer, the other a lawyer of previous good repute. There could hardly be a clearer example of ‘ “the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment” ’ as ‘a precondition of lawful electronic surveillance.’ ” Id. at 330. Both Katz and Berger interpreted this language to hold that “ ‘the order authorizing the use of the electronic device’ in Osborn ‘afforded similar protections to those ... of conventional