United States v. Hester

MURPHY, Chief Judge. The questions presented in this case have been certified to us by the United States District Court for the District of Maryland, pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1989 RepLVol.) §§ 12-601 through 12-609 of the Courts and Judicial Proceedings Article, and Maryland Rule 8-305. They focus on the relationship between the marital communications privilege and the interception and disclosure of communications pursuant to court-ordered electronic surveillance. I On October 7, 1993, a grand jury sitting in the United States District Court for the District of Maryland indicted, on narcotics-related criminal charges, Steven Ernest Hester, Sean Andre Bullock, Steven Wright, Byron Melvin George, Dawon Nathaniel Markham and Lawrence Geraud Day, the designated appellees herein.

The indictment was the result of a joint federal and state criminal narcotics investigation of the appellees, among others. In the course of the investigation, the investigators applied for and were granted two ex parte orders authorizing wiretaps to be conducted over two telephone lines. One of the orders was issued by a judge of the Circuit Court for Howard County, Maryland, on March 22, 1993, and the other by a judge of the Circuit Court for Prince George’s County, Maryland, on March 25, 1993. Both orders contained provisions authorizing the interception of communications concerning the alleged distribution and ⁴⁰³ conspiracy to distribute controlled dangerous substances.

The orders also contained provisions requiring that interception “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.” Pursuant to the order issued by the Circuit Court for Howard County, the Office of the State’s Attorney for Prince George’s County distributed minimization guidelines for review by all agents participating in the electronic monitoring. The guidelines, signed by a judge of the Circuit Court for Howard County, included, inter alia, a discussion of privileged communications and emphasized the