Sun Kin Chan v. State

MOYLAN, Judge. The appellant, Sun Kin Chan, was convicted in the Circuit Court for Montgomery County by Judge William M. Cave, ²⁹³ sitting without a jury, of 1) possession of cocaine with intent to distribute, 2) possession of drug paraphernalia, 3) illegal gambling, and 4) possession of a short-barrelled shotgun. Upon this appeal, he raises essentially two contentions: 1. That all of the evidence found in the search of 10500 Rockville Pike should have been suppressed because the warrant for that search was the tainted product of an unconstitutional and/or unlawful “trap and trace” placed upon his telephone; and 2.

That the evidence was not legally sufficient to support the convictions. In 1986, the Vice Intelligence Unit of the Montgomery County Police Department began an investigation into illicit bookmaking operations. After conducting a surveillance of 10500 Rockville Pike in December, 1986, the police obtained a court order for the installation of a pen register on telephone number 897-5875, registered to that address. Pursuant to that order, they installed a “pen register,” a mechanical device for recording the numbers dialed from that telephone, and a “trap and trace,” a separate device which records the originating number of all incoming calls (whether completed or merely attempted).

An additional feature of the investigative technique used was a “dialed number recorder,” which records the duration of all calls, whether incoming or outgoing. The statistical data compiled over the eighty-day period from February 20, 1987, through May 11, 1987, provided overwhelming evidence of a gambling operation. Over 5,000 calls were received or made, most of them during “prime time betting hours.” Hundreds of outgoing calls were to half-a-dozen various “sports hotlines,” providing up-to-the-minute data on every type of sporting event, including the current “betting line.” Based upon that data, Judge Cave issued a search and seizure warrant for 10500 Rockville Pike. In executing that search warrant, the po ²⁹⁴ lice recovered not only evidence of gambling but the drugs, drug paraphernalia, and shotgun as well.

Essentially conceding the legitimacy of the court order for the “pen register,” the appellant argues strenuously that the “trap and trace” of the incoming calls went beyond the scope of the court order and was, therefore, in some fashion unconstitutional and/or unlawful. His argument is that the information thus unconstitutionally or unlawfully obtained thereby tainted both the search warrant based upon it and, ipso facto, the search executed pursuant to that warrant. He takes exclusion for granted. THE PROBLEM OF PINPOINTING THE ISSUE It is initially difficult to come to grips with the appellant’s argument because of its elusive, phantom quality.

It meanders randomly in and out of the Fourth Amendment, the Federal Wiretapping Statute, the Maryland Wiretapping Statute, the Federal Pen Register Statute and the Maryland Pen Register Statute. When one of these proves in some respect unavailing, the argument shifts nimbly to another which, though availing in that one regard, may be unavailing in some other. The appellant never tells us precisely what law has been violated or in precisely what fashion. We are left with the impression of something bad lurking out there in the mists but that something is never cleanly identified.

Countering the argument is like trying to pin down a cloud. The appellant presents us, as if through a kaleidoscope, with an amalgam created out of bits and pieces of various laws. If the appellant blurs the arguable wrong done to him, his argument is even more diffuse with respect to the arguable remedy. He refers casually to the Exclusionary Rule as if such a monolithic phenomenon even exists.

With the remedy as with the wrong, differentiation is called for. There is, of course, no such thing as the Exclusionary Rule. There are many exclusionary rules, just as there are also many wrongs not redressed by the exclusion of evi ²⁹⁵ dence. There are Federal exclusionary rules and state exclusionary rules.

There are judicially created exclusionary rules and legislatively created exclusionary rules. There are constitutional exclusionary rules and statutory exclusionary rules. There are broad exclusionary rules and, as with the wiretapping statutes, highly particularized exclusionary rules available only for infractions of certain specified laws. There are exclusionary rules aimed only at governmental officials and exclusionary rules aimed at everybody.

There are exclusionary rules applicable only in criminal trials upon the merits and exclusionary rules barring the use of evidence in any forum in any fashion. Before invoking one of these exclusionary rules, the complaining party must first identify the wrong allegedly done to him and then determine which, if any, exclusionary rule has been specifically provided for the redress of that particular wrong. If Violation A has occurred, one may not resort to an exclusionary rule which has been provided only for Violation B. In the case before us, there are five possible violations of the law that the appellant seems to claim. There are, therefore, five possibilities for redress in terms of one or another exclusionary rule or lack thereof. ²⁹⁶ [[Image here]] We turn our attention, one by one, to the possible constitutional provisions or statutes that may have been violated.

If any such violation is found to have occurred, we will consider which, if any, exclusionary rule may have been created to deal with such a violation. THE FOURTH AMENDMENT NOT INVOLVED In the context of intercepted telephone communications, the expectation of privacy contemplated by the Fourth Amendment goes only to the content of the communication and not to the fact that the communication took place. In defining the limits of Fourth Amendment protection, Maryland anticipated the Supreme Court. In Smith v. State, 283 Md. 156 , 389 A.2d 858 (1978), Chief Judge Murphy spoke for the majority of the Court of Appeals in holding that pen register surveillance does not come within the ambit of the Fourth Amendment.

He pointed out, at 283 Md. 167 -168, 389 A.2d 858 , “It is generally held that the expectation of privacy protected by the fourth amendment attaches to the content of a telephone conversation and not to the fact that a conversation took place.” ²⁹⁷ After analyzing numerous state and Federal cases and academic authorities, Judge Murphy pointed out that there is no remaining expectation of privacy in a fact that is necessarily revealed to the telephone company in order for a call to be completed. Although Smith v. State, supra, dealt literally with a “pen register,” its rationale would apply with equal validity to a “trap and trace.” Regardless of the direction of the telephone call, whether outgoing or incoming, the dialer has of necessity revealed to the telephone company the number to be dialed. The Court of Appeals rationale distinguishes only between the content of a call and the fact of a call. The inapplicability of the Fourth Amendment is bi-directional: “While the content of a call is not revealed to the telephone company, the information as to the number dialed must necessarily be revealed, since it is through telephone company switching equipment that calls are completed.

As a recipient of such information, the company may reveal it since the caller can have no reasonable expectation that it will remain private. In fact, the caller should have even less of a justified expectation of privacy, since unlike the disclosures in [United States v.] White [ 401 U.S. 745 , 91 S.Ct. 1122 , 28 L.Ed.2d 453 (1971) ] and [United States v.] Miller [ 425 U.S. 435 , 96 S.Ct. 1619 , 48 L.Ed.2d 71 (1976)] the use of a pen register does not reveal the contents of a communication.” 283 Md. at 172 , 389 A.2d 858 . The holding of the Court of Appeals clearly did not depend upon the direction of the telephone call being traced: “We hold that there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within the fourth amendment is implicated by the use of a pen register installed at the central offices of the telephone company. While the guarantees of the fourth amendment are broad, they are not boundless ...; not everything a person may want to be private is protected by the fourth amendment.

As Katz [v. United States, 389 U.S. ²⁹⁸ 347, 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967)] teaches, the fourth amendment does not afford our citizens ‘a general constitutional right to privacy.’ ” (Citation omitted). 283 Md. at 173-174 , 389 A.2d 858 . In Smith v. Maryland, 442 U.S. 735 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979), the Supreme Court affirmed the decision of the Court of Appeals. It is clear from its rationale that a “trap and trace” device no more implicates Fourth Amendment concerns than did the “pen register” device that was literally before the Court. The fact that, as in this case, the investigative technique could reveal that the call was consummated rather than simply attempted does not alter the analysis.

The critical distinction, for Fourth Amendment purposes, is between the fact of a communication and the contents of that communication. Justice Blackmun, writing for the majority, pointed out, “[A] pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications.” (Emphasis in original). 442 U.S. at 741 , 99 S.Ct. at 2581 . Neither does a “trap and trace.” Nor, for that matter, does a “dialed number recorder.” Justice Blackmun initially pointed out that the place of installation did not involve an intrusion into a constitutionally protected area. That, of course, would be true whether the electronic observer, from the safe base of the telephone company office, was looking up the line or down the line: “Since the pen register was installed on telephone company property at the telephone company’s central offices, petitioner obviously cannot claim that his ‘property’ was invaded or that police intruded into a ‘constitutionally protected area.’ ” 442 U.S. at 741 , 99 S.Ct. at 2581 .

Having found that there was no intrusion into a constitutionally protected area, the Supreme Court moved on to analyze whether there was any reasonable expectation of privacy in a more general sense. Answering that question ²⁹⁹ in the negative, the Court reasoned that the dialing process itself necessitates revealing to a third party (the telephone company) the wish to place a particular call. Once the telephone company is brought into the picture, privacy has been irrevocably breached. Once again, the rationale would not depend upon whether the call was outgoing or incoming: “All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.

All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies ‘for the purposes of checking billing operations, detecting fraud, and prevent ing violations of law.’ ” 442 U.S. at 742 , 99 S.Ct. at 2581 . In a helpful analogy, Justice Blackmun pointed out that in the simpler world of yesteryear, telephone calls could be completed only through the personal intervention of a live operator. That live operator, under no constitutional inhibition, was unquestionably competent to testify that a call had been placed from one number to another and that the call had been completed.

Both the source of the call and its destination alike would have been fair game. Although the operator would not have been privileged, absent exceptions not here pertinent, to eavesdrop upon the contents of a completed call, the operator would of necessity have been a knowledgeable participant in, and witness to, the placement of that call and the fact of its completion. The fact that the necessary intermediary is now a computer instead of a live operator does not alter the doctrinal analysis: “The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate ³⁰⁰ expectation of privacy.

We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.” 442 U.S. at 744-745 , 99 S.Ct. at 2582 . If the telephone company keeps a record of its calls, as is generally the case with long-distance calls but could be the case with even local calls, such records would be subject to legitimate subpoena at the trial either of the caller or of the person called. The billing, moreover, deals only with calls that have actually been completed. The amount of the bill frequently depends, in turn, upon the duration of the call.

With respect to the dialing process in either direction, the possibility of the call’s being recorded is controlling in terms of removing that process from the protective pale of the Fourth Amendment: “The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not, in our view, make any constitutional difference. Regardless of the phone company’s election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. In these circumstances, petitioner assumed the risk that the information would be divulged to police. Under petitioner’s theory, Fourth Amendment protection would exist, or not, depending on hów the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls.

Calls placed across town, or dialed directly, would be protected; calls placed across the river, or dialed with operator assistance, might not be. We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.” 442 U.S. at 745 , 99 S.Ct. at 2583 . If A has no expectation of privacy in the fact that he dialed B, then B by definition has no expectation of privacy in the fact that he was dialed by A. There is no constitu ³⁰¹ tional distinction between the questions of 1) whom you call and 2) who calls you. We hold that the Fourth Amendment was not involved in this case.

What follows ineluctably therefrom is that neither was the exclusionary rule of Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). Mapp’s exclusionary rule, of course, is imposed upon the states only to implement the Federal Constitution and is indisputably not available as a sanction for infractions of Federal statutory law, state statutory law, local rule of court, etc. TITLE III NOT INVOLVED Even without the benefit of the Fourth Amendment, the appellant could, and does, rely upon Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified as 18 U.S.C. §§ 2510-2521 . The fact that the exclusionary rule of Mapp v. Ohio would not be available to him for a violation of Federal statutory law as opposed to a violation of the Federal Constitution would not be fatal to his cause. Title III, in § 2515, provides its own built-in exclusionary rule.

From the point of view of a defendant, moreover, it is an exclusionary rule infinitely to be preferred to the relatively skimpy exclusionary rule of Mapp . It applies, unlike Mapp , to civil and criminal cases alike. It applies, unlike Mapp , to the grand jury stage as well as the trial stage. It applies, unlike Mapp , to private persons as well as to agents of government.

Since the compass of the statutory exclusionary rule is far more sweeping than that of Mapp and since its purpose is not limited to the narrow prophylactic mission of “policing the police,” the statutory exclusionary rule would seem, unlike Mapp , to be invulnerable to the “good faith” exception. We must turn, therefore, to the question of whether the investigative technique used in this case was one regulated ³⁰² by Title III. We hold that it was not. United States v. New York Telephone Company, 434 U.S. 159, 166 , 98 S.Ct. 364, 369 , 54 L.Ed.2d 376, 385 (1977) stated flatly, “Both the language of the statute and its legislative history establish beyond any doubt that pen registers are not governed by Title III.” By a compelling parity of reasoning, the same would be true of a “trap and trace” and of a “dialed number recorder.” Looking to the statutory definitions of “intercept,” “contents,” and “communication,” the Supreme Court concluded that the clear purpose of Title III was to protect the intrinsic subject matter of a communication and not the extrinsic fact that a communication took place.

The protection is of the message, not the medium. “Title III is concerned only with orders ‘authorizing or approving the interception of a wire or oral communication____’ ... Congress defined ‘intercept’ to mean ‘the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.’... Pen registers do not ‘intercept’ because they do not acquire the ‘contents’ of communications, as that term is defined by 18 U.S.C. § 2510 (8)____ These devices do not hear sound. They disclose only the telephone numbers that have been dialed —a means of establishing communication.

Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed 1 is disclosed by pen registers. Furthermore, pen registers do not accomplish the ‘aural acquisition’ of anything. They decode outgoing telephone numbers by responding to changes in electrical voltage caused by the turning of the telephone dial (or the pressing of buttons on push button telephones) and present the information in a form to be interpreted by sight rather ³⁰³ than by hearing.” (Emphasis in original) (Footnotes omitted). 434 U.S. at 166-167 , 98 S.Ct. at 369-370 . Indeed, the Supreme Court seemed to treat the pen register simply as a particular instance of permissible “tracing” generally, as it quoted with approval from the legislative history of Title III and the expressed intent of the legislation contained in the Senate Report: “The proposed legislation is not designed to prevent the tracing of phone calls.

The use of a ‘pen register/ for example, would be permissible____ The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication.” (Citation omitted) (Emphasis supplied). 434 U.S. at 167-168 , 98 S.Ct. at 370 . The Congress that wrote the law limited the prohibition to the “interception of oral communications.” “It is clear that Congress did not view pen registers as posing a threat to privacy of the same dimension as the interception of oral communications and did not intend to impose Title III restrictions upon their use.” 434 U.S. at 168 , 98 S.Ct. at 370 . CHAPTER 206 NOT INVOLVED Eighteen years after the passage of Title III, Congress decided for the first time to regulate the use of both the “pen register” and the “trap and trace.” Because, as we have discussed, the earlier law provided no such regulation, a totally new law was necessary. By the Electronic Communications Privacy Act of 1986, Congress enacted a new Chapter 206 dealing with the subject of “Pen Registers and Trap and Trace Devices,” now codified as 18 U.S.C. §§ 3121-3126 .

It was not a supplement to the preexisting Chapter 119 dealing with the distinct subject matter of “Wire Interception and Interception of Oral Communications,” codified as §§ 2510-2521. It was a separate law covering a separate subject matter. ³⁰⁴ Although it treated the two devices in precisely the same way, the new law recognized the mechanical difference between a “pen register” and a “trap and trace.” Sections 3126(3) and (4), in pertinent part, defined the two terms: “(3) the term ‘pen register’ means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached ...; (4) the term ‘trap and trace device’ means a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted”. Now regulating the “pen register” and “trap and trace” generally, the new law did not even take notice of the sub-issue of whether either such device would reveal whether a call was actually completed rather than merely attempted. The law provided that after its effective date, “no person may install or use a pen register or a trap and trace device without first obtaining a court order” in compliance with various procedural requirements.

The “pen register” used on the telephone of the appellant in this case would have passed muster under the new Federal statute, if it had been applicable. Since the “trap and trace,” on the other hand, was installed without benefit of court order, it obviously would not have passed muster, had the new Federal law been applicable. The new law took effect on January 20, 1987, ninety days after its enactment, and Federal law enforcement agents had to comply with it as of that date. There was a grace period provided, however, before state law enforcement officials would be required to comply.

Subsection (b) of the new law provided: “(b) Special Rule for State Authorization of Interceptions. — Any pen register or trap and trace device order or installation which would be valid and lawful without regard to the amendments made by this title shall be ³⁰⁵ valid and lawful notwithstanding such amendments if such order or installation occurs during the period beginning on the date such amendments take effect and ending on the earlier of— (1) The day before the date of the taking effect of changes in State law required in order to make orders or installations under federal law as amended by this title; or (2) The date two years after the date of the enactment of this act.” Electronic Communications Privacy Act, Pub.L. No. 99-508, § 302 , 100 Stat. 1848 , 1872 (1986). As we shall discuss hereinafter, neither a “pen register” nor a “trap and trace” was prohibited in Maryland prior to the enactment of the new Federal statute. Absent any prohibition, they were, therefore, “valid and lawful” prior to the enactment of the new Federal statute. The grace period provided that they would continue to be valid and lawful until the earlier of October 21, 1988 (two years after the enactment of the new Federal law) or June 30,1988 (the day before the new Maryland regulation, designed to bring us into conformity with the new Federal statute, became effective).

The authorization for the installation of the “pen register” in this case was made on February 6, 1987, and the authorization for the extension was made on April 10, 1987. The installation of both the “pen register” and the “trap and trace” took place within the grace period. Though apparently not required by the law, the full utilization of the devices was coincidentally completed before the grace period came to an end. By its explicit terms, therefore, the new Federal law regulating the “pen register” and the “trap and trace” was not applicable to the employment by the Montgomery County police of those devices in this case. ³⁰⁶ MARYLAND WIRETAPPING STATUTE NOT INVOLVED Even without the benefit of either the Fourth Amendment or the Federal Title III, the appellant could, and does, rely upon the Maryland Wiretapping and Electronic Surveillance Statute.

Even as in the case of Title III, the fact that the exclusionary rule of Mapp v. Ohio would not be available to him for a violation of Maryland statutory law as opposed to a violation of the Federal Constitution would not be fatal to his cause. The Maryland Wiretapping and Electronic Surveillance Statute, in § 10-405 of Cts. & Jud.Proc.Article, provides its own built-in exclusionary rule. From the point of view of a defendant, moreover, it is, just as in the case of its Federal statutory counterpart, an exclusionary rule infinitely to be preferred to the relatively skimpy exclusionary rule of Mapp . It totally prohibits, for instance, the use of illegally obtained communications as either substantive or impeachment evidence, Wood v. State, 290 Md. 579 , 431 A.2d 93 (1981), unlike the exclusionary rule of Mapp , which does not apply to impeachment evidence.

United States v. Havens, 446 U.S. 620 , 100 S.Ct. 1912 , 64 L.Ed.2d 559 , reh’g denied, 448 U.S. 911 , 101 S.Ct. 25 , 65 L.Ed.2d 1172 (1980). It would mandate, for instance, the dismissal of a grand jury indictment following disclosure to the grand jury of illegally intercepted communications, State v. Mayes, 39 Md.App. 635 , 387 A.2d 794 (1978), aff'd 284 Md. 625 , 399 A.2d 597 (1979), unlike Mapp’s exclusionary rule, which does not extend to the grand jury. United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974). Once again, as with its Federal counterpart, the compass of this Maryland statutory exclusionary rule is far more sweeping than that of Mapp .

Once again, since its purpose is not limited to the narrow prophylactic mission of “policing the police,” the statutory exclusionary rule would seem, unlike Mapp , invulnerable to the “good faith” exception. ³⁰⁷ We must turn, therefore, to the question of whether the investigative technique used in this case was one regulated by the Maryland Wiretapping Statute. We hold that it was not. The Maryland statute dealing with wiretapping and electronic surveillance significantly parallels