*1 SPECIAL, COURT OF APPEALS TO BE PAID BY PETI- TIONER. A.3d
Tyrone DAVIS v. Maryland.
STATE of 59, Sept. Term, No. 2011. of Appeals Maryland.
Court
2,May 2012. *3 (McDaniel Randy P.A., Evan Associates, McDonald & brief, D.C.), on Washington, for petitioner. (McGuireWoods LLP,
Adrienne J. Lawrence Washington, D.C.), brief, on petitioner. O’Connor,
Gary E. Atty. (Douglas Gansler, Asst. Gen. F. Atty. Baltimore, MD), of Maryland, brief, Gen. on for respon- dent. BELL, C.J.,
Argued HARRELL, before BATTAGLIA, GREENE, ADKINS, BARBERA and RAYMOND G.
THIEME, (Retired, JR. Specially Assigned), JJ.
HARRELL, J. officers, Montgomery County law enforcement a situated at “listening post” Montgomery County, Maryland, and oper- ating an under ex parte by judge order issued a of the Circuit Court for Montgomery County under properly the Maryland Act, Wiretapping and Electronic intercepted Surveillance a phone, a target from mobile communication phone 408(c)of caller, in Virginia. and receiver located Section 10— Article, Code, Proceedings and Courts Judicial Maryland Maryland to enter an ex order authoriz- permits “wire, oral, or electronic communica- ing anywhere within the ... a communication device tions sent communication, the intercepted As result State.” (the caller), Petitioner, con- Tyrone from Davis police seized Mary- he returned to his dangerous trolled substances when moved the Circuit Court land Petitioner residence. through the asserted suppress by police all evidence obtained seizure, that the order wiretap on the basis illegal search and extraterritorial communi- not authorize did could not authorize such issuing the court cation and motion, citing hearing judge denied interception. “interception” the location of an defining federal case law intercepted was first communication where the mobile lawby it was heard enforcement redirected where first affirmed the Special Appeals On Court appeal, officers. denial of motion. statute aspects, Maryland’s wiretapping a few
Although, Title III of privacy than rights of individual protective more Act of 1968 and Safe Streets the Federal Omnibus Crime (“Title III”), “offspring” statute is an generally the in our statute analogous provisions III. We have read of Title III, Title as interpreted pari to be materia with federal Maryland wiretap III statute courts. Because Title verbatim, adopt are we shall here “interception” definitions *4 jurisdiction and proper the gloss determining the federal Thus, as wiretap long as for an ex order. scope first hear where the law enforcement officers “listening post” within the geographical intercepted order, issuing of the court conclude Accordingly, statute. we under the proper denied suppress properly motion to evidence was that the and, therefore, Montgomery County for the Circuit Court Appeals. judgment Special of the Court of affirm the I. Legal Proceedings Factual and following gleaned The was from the suppres- record hearing. September sion On 8 Attorney State’s for Montgomery filed an ex to County parte application intercept and record and electronic communications from cell phone. Petitioner’s mobile lived in Petitioner Silver Spring, Montgomery County, Maryland. application The was from supported Montgomery County affidavits Police Department and a Special Agent Detective the United Drag Agency, States Enforcement who coordinating were into ongoing investigation the distribution of controlled dan- gerous County. substances within Montgomery Petitioner was one targets investigation. The affidavits evidence, gathered contained wiretaps to pursuant approved previously, to evincing probable cause believe that Davis was transporting dangerous controlled substances into Maryland from outside the day wiretap state. On the application pertinent filed, to present case was Judge Ann Harrington of the Circuit Court issued an order approving application. order, face, on its allowed investigators intercept mobile phone Davis’s required communications and T-Mobile infrastructure) (operator of the relevant mobile phone to pro- information, vide position and caller identification without limit. geographic September (sta-
On 11 Montgomery County police tioned at a covert location in Montgomery County) were monitoring the communications on Davis’s mobile phone and that, overheard call based on the training officers’ experience, indicated that Davis was approaching the Wash- D.C., ington, Miami, area after a journey Florida, potentially transporting dangerous controlled substances into Maryland. Approximately one hour after the call was inter- gave communications, authority intercept 1. The “telephonic information, message messaging, short service text caller identification video, photographs, precise electronic positioning electronic informa- tion, and cellular tower location ...” data associated with the mobile phone phone number registered 757-3 58-15XX. The to Petitioner Hampton, Virginia, at a address. *5 216 at his confronted Davis he arrived
cepted, two officers a County. in The officers concocted Montgomery residence Davis, that he they they told that believed story, which cover recently in a committed suspect of a description matched Davis, vehicle, a and and to search his robbery requested search, During trunk of his car. suitcase marijuana nine in the suitcase.2 pounds found over officers time, to purportedly Davis at that The officers did not arrest drug investigation. ongoing disrupting avoid pos- Davis for grand jury On 22 a indicted October marijuana quanti- 11 “in sufficient September on sessing to circumstance an intent ty reasonably indicate under all to substance,” Maryland in violation of the controlled distribute 5-602(2). Article, (1957, Law RepLVol.), Code 2002 Criminal motion, omnibus which included pre-trial, Petitioner filed a through illegal to evidence request suppress obtained Maryland Judge Rule 2-252. Mi- search and seizure under presided suppression over the Algeo chael of the Circuit Court April 2010. hearing motion on argued counsel that hearing,
At the Petitioner’s trial (1957, 2006 & police Maryland RepLVol.) violated Code Courts Article, 10-408(c)(3), Proceedings by intercepting Judicial to a phone, registered Virginia call Davis’s cell made from address, Virginia, to a while Davis also recipient located placed during the call was the entire Virginia when that the definition Judge Algeo communication. reasoned Maryland under statute “intercept” wiretap was the same interpretation that the federal court’s and Title III and F.2d Rodriguez, v. “intercept” in United States (2d Cir.1992), “the must also be considered that first at the where the redirected contents are place occur heard,” interpretation materia apply pari should Algeo concluded parallel Judge statute. person undisputed to the search of his 2. that Davis consented It vehicle; however, hearing he did Davis maintained at the motion suitcase, drugs where were found. consent the search of the not belonged dispute did not that the suitcase to him. Davis “intercepted” call was lawfully Montgomery County, Davis’s phone first heard investigators where the mobile conversa- *6 and, therefore, tion denied Petitioner’s to suppress motion the trial, evidence seized At was police. the Davis convicted of Article, 5-602(2) violating Criminal and Law sentenced to years in prison. five appeal
Davis noted to of timely Special Ap the Court court, A peals. panel of the intermediate appellate Davis v. State, (2011), 199 21 Md.App. A.3d 181 affirmed. The appellate intermediate court the location concluded that of the caller, or phone, mobile the the the call recipient of were not material. The critical location in was analysis the where the Davis, “interception” 21 occurred. 199 Md.App. A.3d at 189. The that panel held 1)
interception ...
be at
places:
either or both
two
the suspect phone
subject
where
which is
the
the inter-
located,
ception order is
regardless of
that phone
whether
2)
sending a message
receiving message;
a
and where
police
the
are
as
located
the monitor
hear
intercept-
the
wit,
message,
ed
the location of
“listening post.”
Id.
Because the Montgomery County police’s “listening post”
was located within Montgomery
Maryland, the
County,
inter
appellate
mediate
court concluded
that the
of the
communication from Davis’s
phone, although
mobile
associated
Davis,
physically with
was
Virginia,
lawful.
A.3d question: consider the Did the Court of Special Appeals err in affirming the trial court’s decision Mr. denying Davis’s motion to suppress derivative evidence seized Montgomery County police police after the intercepted Mr. call phone Davis’s from his Virginia phone, placed while he Virginia, Virginia was phone line when call’s recipient was also Virginia, violation of Maryland Wiretapping and Electronic Sur- Act, 10-401, veillance Ann. Md.Code Cts. & Jud. Proc. et seq.? opinion,
As foretold earlier this we conclude inter- communication, for the of a or electronic ception statute, Maryland wiretap law occurs where purposes first officers redirect the contents capture enforcement wiretap they communication overheard and where Therefore, long originally the communication. as the heard “listening post” was located within the territorial order, neither issuing parte wiretap the court the ex at the the call phone location of time physical or the during recipient communication placed affirm we Accordingly, judgment call are material. Special Appeals Montgom- Circuit Court for Court County suppress. denied Petitioner’s motion to ery properly
II. of Review Standard *7 statute, a a “to interpreting goal When court’s accomplished, legislative purpose, discern the ends ” State, 384, v. Md. Ray or the evils to be remedied.... 410 (2009) 404, 736, 402 (quoting Pope, 978 747 Barbre v. Md. A.2d 699, (2008)). 157, 172, approach 935 A.2d 708 We the statuto- at ry interpretation process by looking plain language first statute, giving ordinary the words their natural and 708). Barbre, 172, at at meaning. (citing Id. 402 Md. 935 A.2d face, language unambiguous If the is clear and on its our Barbre, ordinarily. 173, at inquiry (citing ends Id. 402 Md. 708-09). 935 A.2d
If, however,
language
ambiguous,
we move on
law, statutory
“legislative history,
pur
to examine the
case
aid
as well as
structure of the statute” to
us
pose,
intent
410
ascertaining
Legislature. Ray,
Md. at
(citations omitted).
405,
focusing on
219 (2001) 667, Brantner, 314, A.2d 671 (citing State v. 360 Md. (2000)). 322, 84, 758 A.2d 88-89
Reviewing a trial court’s disposition of a motion to evidence, suppress we presented view evidence at the hearing, along with any reasonable inferences drawable there from, in a light most favorable to the prevailing party. Bailey State, 349, 363, 72, (2010) v. 412 Md. 987 A.2d 80 (citing Crosby State, 490, 504, v. 894, (2009); 408 Md. 970 A.2d 902 Long State, 486, 498, (2007)). shore v. 399 1129, Md. 924 A.2d The reviewing court defers to the fact-finding of hearing court, findings unless the clearly are erroneous. Id. We however, apply, a non-deferential standard of review when making the legal ultimate determination as to whether the evidence was seized properly under the Fourth Amendment. State, 521, 532, Williamson v. 413 Md. 626, 993 A.2d (2010).
III. Discussion 1968, In Congress III, enacted Title provided which mini- mum standards for and electron- ic communications during criminal investigations prosecu- State, tion. 65, 69, v. 323 Md. 591 A.2d Mustafa (1991). III Title was intended to privacy balance concerns public and the interest prosecutions. effective criminal Id. others, (citing, among Kahn, United States v. 415 U.S. 977, 982, (1974)). 94 S.Ct. 39 L.Ed.2d Each state
was required to enact a responsive statute that was at least as *8 protective of private citizens’ rights as Title III. (citing Id. v. Siegel, 256, 271, (1972)). State Md. 292 A.2d In Legislature responded by enacting the Wiretapping and Electronic Surveillance Law. 1977 Md. Laws 693. The Maryland wiretap statutory begins scheme with a general prohibition on intercepting willfully, endeavoring to intercept, or procuring “any person other to intercept or wire, endeavor to intercept, any oral or electronic communica- 10-402(a)(l). tion.” Proc., § Cts. & Jud. Intercept means “the aural or other acquisition of wire, the contents of any electronic, or oral communication through the use of any Proc., &
electronic, mechanical, or other device.” Cts. Jud. 10-401(3).3 § interception on prohibition to the general
An exception investigators capture law enforcement to enable created crimes, in a including dealing enumerated of certain evidence Proc., § 10- & Jud. substance. Cts. dangerous controlled 402(c)(2)(ii)(l)(L). of the enumer- In order to obtain evidence Prosecutor, General, or a crimes, a “Attorney State ated jurisdic- judge competent to a Attorney may apply State’s §of 10- tion, provisions in accordance with the judge, authorizing ..., an order may grant ” communications.... Cts. & Jud. or electronic 10^06(a). Proc., § a a law authorizing wiretap, parte
To an ex obtain (of juris- judge competent a provide officer must enforcement affirmation, diction) oath or application, upon a written with justify- statement facts” complete includes a “full and order, the offense that is including: details about ing committed; be, description a particular being, or will description previous intercepted; to be communication why an as to explanation investigative procedures failed used; for period to be the time dangerous are too they Cts. previous wiretap applications. a list of interception; and 408(a)(l)(i)—(v). Proc., A ex judge enter & Jud. 10— order, application, authorizing upon receipt wire, oral, or electronic communications jurisdiction permitted the territorial para- under (3) (2) subsection, if the determines of this graphs (i) that an individual cause belief probable There is committed, particu- or is about commit committing, has (ii) subtitle; 10-406 this lar offense enumerated communi- particular for belief that cause probable There through offense will be obtained concerning that cations (iii) have investigative procedures Normal interception; to be reasonably appear and have failed tried been 2510(4) identically Title III. 18 U.S.C. "Intercept” is defined 3. (2011). *9 if unlikely dangerous;.... to succeed tried or to be too Cts. 408(c)(1) added). Proc., § (emphasis & Jud. 10— “may interception An authorize the of parte ex only or electronic communications within the territorial jurisdiction application the court which the was filed.” of 10-408(c)(2) added). Proc., § (emphasis Cts. & Jud. Section 10-408(c)(3) jurisdiction § of expands physical aspect on the wiretap providing that an order interception
authorize the communications received aby anywhere sent communication device within the State permit interception so as to of the communications regardless physical- of whether the communication device is jurisdiction located within the of the court in which the ly application interception. was filed at the time of the The allege must that the offense application being investigated jurisdiction in the of the court in may transpire which the added.). application (Emphasis filed. 10-408(c) § provisions relating are the present
crux case. Petitioner maintains that 10- 408(c)(3) officers, operating allows law enforcement by Maryland under ex order issued circuit court judge, intercept target when the “elec- tronic, mechanical, Mary- other device” is located within phone Virginia land. Petitioner and his cell were located when he initiated a call to a also person, Virginia, situated Montgomery County message and the Police intercepted Therefore, pertinent to this case. Petitioner contends the 10-408(c)(3) plain language renders the un- hand, Respondent, points lawful. on the other us to asserted- that, ly long relevant federal case law that holds so as the interception of the mobile communication occurs within the order, geographical jurisdiction of the court that issued the is valid. After a reading careful statute scheme, language and the overall we conclude that 10-408(c) subject interpreta- to more than one reasonable tion, and, therefore, legislative we must look to the relevant history to ascertain the Legislature. intent *10 10-408(c) Maryland wiretap was added to the stat-
Section
in
ute
1991. 1991 Md. Laws 285.
amendment
added
development
phone technology.4
to account for the
of cellular
(1991).
1991,
Report,
parte
Floor
S.B. 153
Prior
ex
wire, oral,
or electronic communi-
interception
order
cations
issued
for communications within the
could be
jurisdiction of a
circuit court. Id. The new section
particular
agents
obviated the need for law enforcement
to obtain multi-
ple
parte
jurisdiction
phone
ex
orders for each
where a mobile
might
apply
be located and allowed them
for one ex
in
jurisdiction
where the “base station” was located.
153,
Bill
During
hearing
sponsor
Id.
on Senate
the bill
(Senator Murphy) emphasized
multiple wiretap
the burden of
applications
potential advantage
on law enforcement and the
provided
drug
by allowing
this
traffickers
them to “weav[e]
jurisdictional
in and out of
boundary
counties
across one
Hearing
after another within the state.”
Before the Judicial
(30
1991).
Proceedings Committee
Jan.
This section of the
wiretap
keep pace
statute was “intended to allow the law to
(1991).
with current
Bill
technology.”
Analysis, S.B. 153
1993,
added,
In
a paging
the words “or
device” were
follow-
10-408(c).
“a
ing
phrase
phone,”
mobile
1993 Md.
Later,
response
holdings
Perry
Laws 598.
to our
v.
State,
(1999),
Mustafa,
357 Md.
In addition to this legislative history, relevant federal and
state court opinions provide a persuasive approach for inter-
*11
§
preting
10-408 and applying it to the
developed
facts
at the
suppression hearing in the present case. As we have noted
previously, Maryland’s wiretap statutory scheme is an “off-
spring” of
III.
143, 151,
Title
State v.
289
Bailey, Md.
422 A.2d
1021,
(1980),
1026
superceded by statute
grounds
on other
in
State,
434,
McNeil v.
112 Md.App.
(1996);
“electronic, mechanical, or other device” with same (1980). 'd, Md. 424 A.2d aff 10-408(c)(3) analogous The III provision pro- Title vides, part: in relevant
Upon application judge may enter an ex such modified, order, authorizing or as requested approving electronic court within the territorial in which jurisdiction of (and judge sitting but is outside within of a United the case device States if jurisdiction), court such authorized Federal the basis facts determines on submitted that— applicant (a) cause for that an probable there belief individual committed, has or is to commit a committing, particu- about lar enumerated section 2516 of this chapter [18 offense 2516]; USCS
(b) com- probable particular there is cause belief concerning munications that offense will be obtained through interception; such
(c) procedures normal have been tried investigative if reasonably appear unlikely have failed or to be to succeed 2518(3) (2011) tried too ... dangerous or to be 18 U.S.C. added). (emphasis federal addressing “interception” seminal case where *12 v. United States call III is telephone occurs under Title (2d Cir.1992).
Rodriguez,
Rodriguez,
F.2d
In
the
968
130
convicted, in the
District Court for the
defendants were
U.S.
York, of
charges relating
of
various
Southern District New
manufacturing
ring,
crack-cocaine
and distribution
ongoing
based, in
on
from a
of a New
part,
gathered
wiretap
evidence
trial,
Jersey
968
134-35. At
made
phone.
F.2d at
defendants
evidence;
wiretap
the motion was
suppress
a motion to
the
denied. Id. On
sought
new trial was
because assert-
appeal,
have
edly
of New York court did not
the Southern District
and,
Jersey phones
on
jurisdiction
wiretaps
to authorize
New
Rodri-
therefore,
wiretap
the
illegally
the
obtained
evidence.
225
III
135. As
author-
supra,
968 F.2d at
discussed
Title
guez,
judge
intercept
izes a
electronic communica-
in
jurisdiction
“within
territorial
of the court which
tions
the
appellate
in
sitting.”
Rodrigv&z
the
Id. The
court
of
concluded that
the definition
included
because
call,
of
acquisition
intercep-
the “aural”
the contents
occurs
the contents of the wiretap
captured
tion
where
were
originally,
or redirected
as “the
where the
place
well
are
redirected contents
first heard.”
because the Francisco, Northern District San the listening post North, 653864, *4, California); v. 2011 WL United States (S.D.Miss.2011) (conclud- 141337, 2010 *13 U.S. Dist. LEXIS place is tied to the of inter- ing jurisdiction that “[territorial than location ception,” investigation rather where Burford, v. 755 activity occurring); criminal United States (S.D.N.Y.1991) 607, 611 that the relevant F.Supp. (stating inquiry jurisdiction is where determining case, in this although phone tapped occurs and room” Maryland, government the calls were routed “wire York, wiretap in the New where Southern District of issued). order has to Title III have been interpreted
State statutes similar v. relying Rodriguez. on See United States consistently, (10th Cir.1994) Tavarez, “inter (defining 40 F.3d 1138 Act of Communication ception” Security under Oklahoma are as “the where the contents the communication place officials,” in with first law enforcement accordance heard III interpretations similarly federal worded Title court (Fla. McCormick, 1220, 1222 provision); State v. 719 So.2d court’s of the Flori App.1998) (rejecting interpretation a trial have da a Melbourne Police officer did not wiretap statute that on jurisdiction apply wiretap regarding for and act County, of Brevard phone communications outside “ occurs Florida, ‘interception’ of a cellular call because location and at the site tapped telephone both at the call”); where law enforcement authorities hear and record the Police 829 Bellingham Dep’t, Kadoranian v. Wash.2d (1992) (concluding interceptions P.2d that “occur Washington Privacy statute allows where made” that calls during recipients of communications made wiretapping state); State, outside of the but see Castillo v. 810 S.W.2d (concluding (Tex.Crim.App.1990) language stating compe Texas wiretap “only statute judicial tent for the administrative district will made act on an which the proposed therefore, and, territorial restrictions application,” established *14 “interception” wiretap physi- occurred was placed where cally).
Petitioner maintains that none of the federal and state cases wholly addresses the issue of of a extraterritorial case, communication and in each supra, the result discussed and, moreover, in were rooted the national umbrella of federal jurisdiction, jurisdiction court vice states and state over its however, counties and municipalities. Recently, the United States District Court for the Southern District of California question addressed the interception wholly extraterritori- Cosme, al mobile communications in United States v. 2011 WL 3740337, (S.D.Cal.2011). 2011 U.S. Dist. LEXIS In 94742 Cosme, defendants, something Fernan members called the do Organization (“FSO”), Sanchez by grand were indicted a jury conspiring for pattern conduct activi racketeering ty cocaine, marijuana, conspiring distribute and meth amphetamine. 3740337, *1, 2011 WL at 2011 Dist. U.S. 94742, at LEXIS *7-8. The by indictment was supported gained evidence through electronic of telephones surveillance Cosme, used defendants and co-conspirators. 2011 WL 3740337, *1, 94742, at 2011 U.S. Dist. *8. LEXIS at The wiretap application was made an Assistant United States Attorney to United States District Court the Southern District of California and was supported by allegations of an FBI agent investigating the drug trafficking and associated violent activities of FSO from Mexico into the San area. Diego Cosme, 3740337, *1-2, 2011 WL at 2011 U.S. Dist. LEXIS 94742, at defendant, *8-9. One joined by others, filed a motion suppress evidence from derived wiretaps because they exceeded allegedly the authorizing Cosme, *8, court under Title 3740337, III. 2011 WL at 2011 94742, U.S. Dist. LEXIS at *27. FBI intercepted The defendant’s communication “while he a cellular using phone in Mexico to communicate with others located Mexico for the Cosme, entire duration of the conversation.” 2011 WL *8, 94742, at 2011 Dist. U.S. LEXIS at *27. argued defendant that Title III did not authorize entirely communications initiated and received
228 Cosme, *8, at country. within another WL 94742, at *28. The conceded government Dist. LEXIS U.S. wiretap Title not a court to authorize a III did allow Mexico, III language “suggests that no Title but countered limited ability of a to authorize Congress only solely conversations which occur interception of those *8-9, Cosme, WL the United States.” Relying at *29. on the definitions of U.S. Dist. LEXIS concluded that the “interception” Luong, the District Court communi- conclusively that the intercepted record established in a were law enforcement officials “wire cations heard *15 and, of within the Southern District California room” located therefore, within “intercepted” all of the communications were wiretap the order. jurisdiction the of court issued the Cosme, *9-10, Dist. LEXIS at 2011 U.S. WL The traffickers and drug at *32-33. court noted wiretap from valid exempted offenders “are not the violent denied the plans their across the border” and making wiretap. from the motion to evidence obtained suppress 22-23, Cosme, *10, at 2011 U.S. Dist. 2011 WL *33, LEXIS at 69. us phase “anywhere
Petitioner to construe the urges 10-408(c)(3) modify- of the statute as state” the reading would “a communication device.” This narrow ing officers, operating law enforcement require Maryland-based order, to shut parte wiretap ex down under otherwise valid the phone target communications when interception of the This another state or District Columbia. phone enters technological chal- present logistical an enormous would and, in the cases where operators enforcement lenge law and forth over state or subject investigation of an crosses back (as operation in a drug lines distribution boundary other Columbia), the task County the District Montgomery and/or alone But this burden does impossible.5 challenging bemay phone impossible intercepting advance a mobile to know in 5. It where call will be initiated or the situs of communication unfolding, phone call is determi- recipient of call. Even while Rather, not shape legislative our decision in this case. history of Maryland wiretap analogous statute and federal case us urged law lead to a different result than that Petitioner.6 widespread use and mobile nature of highly phones, drug
cellular especially circumstances of distri rings, presents unique bution challenge courts deter mining jurisdiction for on proper applications for ex acting orders. must wiretap Legisla We determine what the ture trying regulate. We so looking do entirety of the wiretap target statute. The statute “interception”; therefore, critical to our interpretation 10-408(c) is the of “interception.” definition 10- Under 401(3), the definition of interception is “the aural or other wire, acquisition electronic, of any contents or oral ” communication.... The common and under generally most meaning stood relating “aural” is “of or to the ear or to the hearing.” sense of Webster’s Ninth Collegiate New Dictio (1989). nary 116 “interception” point Because is the tipping statute, provides it naturally jurisdictional anchor for an ex parte order authorizing law enforcement officers to intercept oral, or electronic communications. Where “interception” and, therefore, occurs where is con- *16 precise, nation of phone the may very real-time location of the McKenna, difficult. Clifford S. Wiretapping Fishman & Anne T. & 2:70,
Eavesdropping: (3d Age § the Surveillance in Internet at 2-117 ed.2008). Respondent advances also the "rule of the last as a antecedent” basis 6. interpreting for phrase "anywhere the modifying in the State” as "interception,” rather than “communication device.” See Sullivan v. Dixon, 444, 451, (1977) 280 Md. (citing 373 A.2d Souther- land, Construction, (4th Statutory and § Statutes 47.33 ed. C. Sands 1973)) (recognizing generally statutory a rule of construction "that a qualifying ordinarily clause immediately preceding is confined to the phrase”). word or Respondent's Statutory We decline invitation. interpretation guided simply application should not be the of fixed rules, and immutable canons or rather it should be also matter of "a analysis judgment Sykes, in each case.” J. Melvin A Modest Quo, Proposal Change Maryland’s a in Statutes 43 Md. L.Rev. for (1984). courts,
ferred, by numerous federal dis- has been addressed statute defines supra. Maryland’s wiretap Because cussed in acquisition include communication aural “interception” term; accept the we way the that Title III defines same (followed by in other employed Rodriguez the rationale apply courts), communications interception occurs where the redirected, they as well as were captured where were first agencies. by law enforcement first heard case, recently, analogous involved The Cosme decided There, at hand. the United States circumstance to the case of California expanded Court for the Southern District District Rodriguez, and later initially the undertaken analysis jurisdictional is “interception” location of the Luong, the order, phone a the fact that a mobile wiretap despite for focus entirely. within Mexico initiated and received conversation was is Thus, interception makes clear that the location of Cosme the rather than notion jurisdiction, the essential element (when courts jurisdiction federal a national umbrella federal concerned) the animating force for results being are the Nevertheless, an Title cases. ex under the III reached only circuit court if the be issued being investigated may “that the offense application alleges the jurisdiction applica- of the court which transpire the Proc., 10-408(c)(3). Establishing & tion is filed.” Cts. Jud. alleged activity investigation criminal under the location of the on applicants and reasonable constraint places necessary orders. wiretap ex parte 10-408(c)(3) wording re- maintains that
Petitioner they to communication devices when stricts interpretation not Maryland. are This located Legislature. When with the intent of the accordance 10-408(c)(3) scheme, in statutory legislature added clause “within restrictive geographically addition State,” phrase permit “so as to regardless telephone of whether court in which within the physically located of this purpose ...” was added. The was filed application *17 authority circuit court’s phrase was to broaden a effectiveness of law enforcement investigators wiretapping phones, without losing continuity jurisdictional due to constraints. interpretation This supported by legisla- 401(3)(c), history tive designed which was to enhance 10— orders, authority judges issuing ex rather wiretap restricting than their In authority. sponsor Bill 401(3)(c), Senate which eventually became testi- 10— fied that in “the midst of a drug epidemic,” drug traffickers jurisdictional were exploiting the restrictions of the current wiretap laws which police tied “the hands of trying appre- drug hend traffickers and put prison.” them case,
In present the ex parte order was issued the Circuit Court for Montgomery County, county where alleged drug distribution activities occurring. were “listening post,” where law enforcement officers first heard intercepted from Petitioner’s mobile phone, was located a covert facility within Montgomery County. Although the Petitioner was situated in Virginia when placed he the call in question that facilitated the seizure marijuana arrest, and his ultimate and his call was received person Virginia, also the communication was intercepted aurally by police detectives monitoring the “listen ing post” Therefore, Montgomery County. the interception was lawful and the denial of the motion to suppress proper.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; IN COSTS AND THIS COURT THE COURT OF SPECIAL BE APPEALS TO PAID BY PETITIONER.
BELL, C.J., GREENE, J. dissent. rely testimony 7. sponsor determining We on the of the bill intent; legislative especially where there were minimal amendments to testimony. the bill introduced after that Jack Schwartz & Amanda Conn, Appeals Stakem Party: The Court at the Cocktail The Use and 432, 445-46, Legislative History, (1995) Misuse 54 Md. L.Rev. (stating "sponsor testimony likely especially ... [is] to be reliable [and, purpose goal underlying evidence of the goes i]f statute a bill through legislative process essentially unchanged, the court should give significant weight sponsor”). to the views of the *18 232 GREENE, J., C.J., joins.
BELL, dissenting, which he suppress motion to evidence denial of his Following the wiretap an violation by illegal obtained alleged was 10-408(c) (1957, Supp.) 2011 Repl.Vol., 2006 Maryland Code Davis, Article,1 Tyrone petitioner, Proc. of the Cts. & Jud. 10-408(c) (1957, Repl.Vol., Supp.) 2011 Maryland Code 1. Article, provides: Cts. & Jud. Proc. parte interception order ex "Grounds for order, "(c)(1) judge may parte application the enter an ex Upon the oral, wire, modified, authorizing interception of or requested or as as jurisdiction permit- within the territorial communications electronic subsection, (2) (3) if the paragraphs and of this ted under by applicant that: submitted on the basis of the facts determines "(i) an individual is commit- probable cause for belief that There is committed, particular offense about to commit a ting, has or is subtitle; §in 10-406 of this enumerated “(ii) particular probable cause for belief that communica- There is through intercep- concerning that offense will be obtained tions tion; "(iii) investigative procedures have been tried and have Normal unlikely if tried or to reasonably appear to be to succeed failed or dangerous; and be too "(iv) probable cause for belief: There is where, which, place or the That the facilities from "1. intercepted being to be are communications are or electronic used, used, with the commission of in connection or are about to be of, to, offense, commonly the name leased listed in or are (a)(1) of this person accordance with subsection used this section; or whose communications are the actions of the individual "2. That thwarting intercepted have the effect of to be could (a)(2) this facility with subsection specified in accordance from section. (3) (4) “(2) Except provided paragraphs of this subsec- (1) tion, paragraph of this subsec- parte issued under an ex order wire, oral, electronic may interception of authorize the tion jurisdiction of the court the territorial application filed. was in which Attorney "(3) is made application for an ex If an Prosecutor, General, Attorney, an order or a State’s the State (1) subsection authorize paragraph of this issued under by a communica- received or sent interception of communications intercep- permit State so as to anywhere within the tion device regardless whether the communica- tion of the communications the court physically within the located tion device interception. at the time of the application was filed in which being investigated may allege application that the offense The must convicted, Montgomery in the Court for was tried Circuit dangerous “a controlled County, possessing substance reasonably to indicate under all circum- quantity sufficient dispense danger- stances an intent to distribute or controlled substance,” (2002, ous in violation of Code 5-602(2) Article. Supp.), challenge Crim. Law His rejected suppression ruling Special the Court State, affirms that v. Appeals. majority decision. Davis 214-15, op. at 43 A.3d 1046. Like the intermediate appel- State, court, 273, 287, late Davis v. 21 A.3d Md.App. *19 10-408(c) (2011), it holds that law enforcement permits jurisdiction
to
communications that
intercept
occur outside the
court
origi-
that issued
order—communications that
from a communication
registered
nate
device
and used
another
to
State
are directed
another communication
device, also out of
long
State —as
as where the law enforce-
communications,
ment
first
intercepted
officers
hear the
“listening post,”
issuing
jurisdiction.
is within the
court’s
Davis,
and,
op. at
I. The facts relevant to the resolution of appeal this are straightforward undisputed. petitioner, The a resident of Spring, Maryland, Silver target was the of an investigation the organized distribution of controlled substances within Montgomery County. Pursuant investigation, to that Attorney Montgomery filed, State’s County the Circuit Court for Montgomery County, an ex parte application to wire, oral, intercept and record and electronic communications from the petitioner’s mobile cell phone, registered which was in Virginia. On the basis of the application and the supporting transpire application in the of the court in which the filed. "(4) subsection, judge In accordance with competent this a
jurisdiction may State, authorize continued within the judge's jurisdiction, original both within and outside the if the judge's jurisdiction.” occurred within the affidavits, approved application, of that court authorizing interception, petition- from the executing communications, “telephonic short mes- phone, er’s mobile information, messaging, caller identification sage service text video, precise positioning electronic photographs, electronic information, requiring and cellular tower location data” and T-Mobile, provider, provide mobile service petitioner’s information, geo- and caller identification without position Thereafter, at a “listening limit. while stationed graphic county, covert location within the established for the post”—a petitioner’s communications —the purpose monitoring call, County telephone placed Police overheard Montgomery Virginia, Virginia phone, from his petitioner of the information Virginia telephone to a line. On basis received, believing petitioner transport- thus that the they Miami, Maryland, from Florida into ing dangerous substances was confronted the officers his residence petitioner searched, County, resulting the seizure Montgomery and, marijuana from his suitcase eventual- pounds over nine ly, arrested. evidence was made petitioner’s suppress motion 408(i)(l).2 then, now, He as he does
pursuant argued 10— *20 408(i) §2. states: 10 — suppress by aggrieved persons "Motions to "(i)(l) trial, any hearing, proceeding Any aggrieved person in or in or officer, court, body, any department, agency, regulatory or before thereof, authority political may of this State or a subdivision other any suppress intercepted the or move to contents of communication, therefrom, electronic or evidence derived on grounds that: "(i) unlawfully intercepted; The communication was "(ii) intercepted authorization under which it was The order of face, or in strict insufficient on its or was not obtained issued subtitle; compliance or with this "(iii) conformity made in with the order The was not of authorization. "(2) Maryland be made in accordance with the This motion shall intercepted granted, the contents of the Rules. If the motion is communication, wire, oral, electronic or evidence derived there- or from, having of this shall treated as been obtained in violation filing by aggrieved judge, upon of the motion subtitle. The order in violation of 10- wiretap that was obtained 408(c)(3). section, maintains, is clear and unambigu- That he and,
ous, not enforce- plain language, its does authorize law officers, operating parte ment under ex issued court Maryland judge, intercept circuit “electronic, mechanical, or when the other device” is located concludes, petitioner’s outside of this state. He since the cell address, phone registered Virginia was to a and the entire communication took intercepted place petitioner while the was Virginia, and was with a recipient who was located outside Maryland, the state of that exceeded the was, thus, of the ex permissible scope parte imper- order and missible. wire, oral, majority “interception holds of a communication,
electronic
for
purposes
statute, occurs
wiretap
cap-
where law enforcement officers
ture or redirect first the contents of
communication
over-
wiretap
heard
and where
heard
they
originally the
Davis,
op.
communication.”
at
A.3d at 1048. To reach this
the majority
as it
must,
petitioner’s plain
language argument and concludes
10-408(c)
language
subject
“the
to more than one
interpretation,”
reasonable
id. at
237 223, 1051, and, id. at III, 43 A.3d at of Title “offspring” is an statutory therefore, this connection between two relies on Act and schemes, Maryland between the as well as similarities cases III, federal courts justify “look[ing] apt Title guidance interpreting for persuasive Title [interpreting III] 223, Op. at 43 statute.” provisions analogous at 1051. A.3d law,4 majority con- of federal case
From this overview
to “enter
authority
judge
Ill’s
to a
grant
that Title
cludes
modified,
order,
authorizing
or as
requested
as
parte
an ex
we, oral,
communica-
or electronic
approving
jurisdiction of the court
which
within the territorial
tions
showing
progress
been made
judge
the order
what
has
who issued
objective
authorized
and the need for
toward achievement of the
added).
analogous
provision,
(emphasis
federal
18
interception,”
contrast,
2518(6),
“may
simply
an order
§
states that such
U.S.C.
added).
reports
judge....”
(Emphasis
See
require
to be made to the
Baldwin,
635, 641,
(1981).
Md.
426 A.2d
920
also State v.
289
Also,
2511(2)(c),
may intercept
§
a
law enforcement
under 18 U.S.C.
order,
wire, oral,
provided
communication without a court
or electronic
granted by
party
communication.
prior
has been
to the
consent
hand,
10-402(c)(2),
one-party
only deems such
on the other
Section
person
law enforcement officer or a
consent to be sufficient where a
supervision
investiga-
“acting
prior
and under the
of an
at the
direction
wire, oral,
intercept
law enforcement officer” seeks to
tive or
acquire evidence of the commission of
electronic communication to
murder,
crimes, including
kidnapping,
rape.
and
certain enumerated
officer,
person acting under color of
If the law enforcement
or other
law,
conversation,
one-party
party
this satisfies the
consent
is a
to the
circumstances, however,
10-402(c)(2)(ii).
requirement.
In all other
statute,
any
exceptions set forth in the
it is
in the absence of
other
intercept
person
person to
a communication unless “the
unlawful for a
given
party
parties
...
have
is a
to the communication and
all of
”
10-402(c)(3) (emphasis
add-
prior
interception ....
consent to the
483;
ed).
Mustafa,
Richard P.
II. To determine the intended reach of the Wiretap- Act, ping (1957, and Electronic Surveillance Md.Code. 2006 §§ Article, 10-401-10-414 of Repl.Vol.) the Cts. & Jud. Proc. guided by statutory we are the rules of interpretation. We statute,” “begin[ plain language with the ] look to “ordinary, popular understanding English language [to] interpretation of its terminology.” dictate[ ] Kushell v. Dep’t Res., 563, 576, (2005); Natural 385 Md. 870 A.2d State, 400, 429, see also v. 382 Md. 855 A.2d Khalifa (2004). important, 1191-92 It is in so doing, that we “neither language add nor delete so as to reflect an intent not evi- plain statute; denced language of the nor construe the statute with interpretations forced or subtle limit or State, application.” 378, 387, extend its Price v. 378 Md. (2003).
A.2d
“If statutory language is unambiguous
when construed
to its
according
ordinary
everyday
mean-
then
ing,
give
we
effect
to the statute as it is written.”
Kushell,
It is out, 219-20, as the majority points at op. 1048-49, 43 A.3d at Wiretap Act was enacted as a to III response Title of the Omnibus Crime 1968, §§ Control and Safe Streets Act of 18 U.S.C. 2510-2521. purpose of Title III was provide to “uniform minimum oral, standards governing interception wire, and use of and electronic communications in connection with the prosecution
240 69, at Mustafa, 323 Md. criminal offenses.”
of certain
use of
“prohibited
The Act
A.2d at 483.
in strict con-
unless obtained
oral and wire communications
uniform
prescribed
Act’s
which
formity
provisions,
with the
governing
minimum national standard
a number of
in connection with
of such communications
use
State,
11,
312 Md.
13-
offenses.” Ricks v.
criminal
designated
(1988).
terms,
612,
apply
it did not
to
14,
By its
537 A.2d
implementing
pass
each state had to
the states. Because
law,
may be more restrictive
“may not be less but
state
which
483,
law,”
at
591 A.2d at
Mustafa, 323 Md.
than the federal
also,
2516(2),
adopted
of Maryland
the state
see
18 U.S.C.
which,
it
mirrored
although
largely
Act
Maryland Wiretap
was,
law,
respects,
federal
certain
provisions
at
restrictive,
Mustafa, 323 Md.
supra,
more
note 3.
Ricks,
483;
A.2d at 312 Md. indicated, against general prohibition Title III contains a As of the contents acquisition “the aural or other interception, wire, electronic, through the use or oral communication any device,” mechanical, electronic, or other U.S.C. any 2510(4), communi- or electronic and disclosure Act, provides, cations. That 18 U.S.C. portion part: relevant “(1) in this chap- specifically provided as otherwise Except any person ter who—
“(a) or intercept, to intentionally intercepts, endeavors person intercept other endeavor procures any communication; wire, oral, or electronic intercept, any “(b) use, uses, any procures endeavors to intentionally electronic, any mechani- to use or endeavor to use person cal, intercept any oral communication or other device *25 when—
“(i) to, a or otherwise transmits such device is affixed "wire, cable, connection or other like signal through, communication; or in wire used “(ii) such radio, device transmits communications or interferes with the transmission of such communica- tion ....
“(c) discloses, intentionally or disclose, endeavors to any person the wire, oral, contents of any or electronic communication, knowing or having reason to know that the information was through obtained wire, oral, or electronic communication in violation of subsection; this
“(d) uses, intentionally use, or endeavors to the contents wire, oral, any communication, or electronic knowing or having reason to know that the information was obtained through wire, oral, the interception of a or electronic ” communication in violation of this subsection....
Moreover, any “[w]henever wire or oral communication has been intercepted, no part of the contents of such communica- tion and no evidence derived therefrom be received in trial, evidence in any hearing other ... proceeding if the disclosure of that information would be in violation of [the] chapter.” 18 U.S.C. 2515.
There is an exception to general this prohibition, however. 2516(1). 18 U.S.C. That section allows the Attorney Gener- al, Deputy General, Attorney General, Associate Attorney any Assistant Attorney General to application “authorize an a Federal judge of competent jurisdiction” for “an order authorizing or approving the interception of wire or oral the Federal Bureau of Investigation, or a Federal agency having responsibility the investigation of the offense as to which application made, when such interception may provide provided or has of’ evidence certain designated offenses. Section prescribes procedure for obtaining an ex parte order authorizing the interception wire, oral, or electronic jurisdictional communications and the reach of such an order:
“(1) Each application for an order authorizing or approving wire, oral, the interception of a or electronic communication *26 oath or writing upon shall made chapter under this and shall jurisdiction of judge competent affirmation to a application---- to make such authority state the applicant’s “(3) may an ex judge enter application such Upon order, modified, authorizing approving or as or requested wire, oral, communications of or electronic interception which the jurisdiction the court in within the territorial of (and but within jurisdiction outside that judge sitting is interception a mobile device States in case United of jurisdiction), a Federal within such if authorized court on of the facts submitted determines the basis judge applicant that— “(a) for an individual probable there is cause belief committed, is about to commit committing, has or [supra ] of enumerated section 2516 particular offense this chapter;
“(b) particular for belief that probable there is cause that offense will be obtained concerning interception; such through
“(c) have tried and investigative procedures been normal if to succeed reasonably appear unlikely have failed or ” added). dangerous.... (Emphasis tried or to be too and state 18 U.S.C. judges, With to state authorities regard 2516(2) provides: State, any of or the attorney “The principal prosecuting attorney any political of subdivision principal prosecuting of that thereof, attorney if is authorized statute such compe- court judge to a State application State to make or authorizing approving for an tent communications, electronic or for, judge may grant such apply to such chapter this and with with section 2518 of conformity approving or authorizing, statute an order applicable State wire, oral, or electronic communications having respon- or law enforcement officers by investigative which the sibility investigation of the offense as to for made, when or application interception may provide such has commission provided evidence offense murder, extortion, bribery, kidnapping, gambling, robbery, dealing drugs, narcotic marihuana or other dangerous limb, life, drugs, dangerous other crime or property, punishable by imprisonment more than one year, applicable designated any State statute such authorizing *27 interception, any forego- or to commit any conspiracy ing offenses.” III,
Like Title Maryland the Act contains a general prohibi- tion against “[w]illfully intercepting], endeavoring] to inter- cept, any or procuring] person intercept other to or endeavor wire, oral, intercept, to any or electronic communication.” 10-402(a)(l). also, § III, again It Title “intercep- like defines tion” as the “aural other acquisition any or of the contents of wire, electronic, any or oral communication the use of through electronic, mechanical, 10-401(3). § or other device.” The Act likewise to exceptions general contains the 10-406(a) prohibition. General, Attorney Section the permits Prosecutor, State any “apply or State’s to a Attorney jurisdiction, of competent judge, the accordance with ..., § the provisions grant of 10-408 authorizing an order [to] wire, interception the of by or electronic communications investigative law enforcement intercep- officers when the tion may provide or has provided evidence of commission of,” among crimes, “[d]ealing other in a controlled dangerous substance.”
The Maryland analog 2518 is That 10-408. section prescribes the process by General, which the Attorney State Prosecutor, or a State’s Attorney may obtain an ex parte interception order from a judge competent jurisdiction of jurisdictional (c)(1) reach of that order. Subsection delin- required eates the showings to made by applicant order, parte ex prerequisite issuance such order. Upon (c)(2) made, those showings having been subsection provides that any ex order issued “may authorize the wire, oral, or electronic only communications jurisdiction within the territorial the court which the however, Where, application filed.” application was Prosecutor, or, General, Attorney the State filed case, authorize commu- Attorney, a State’s this jurisdiction outside of territorial nications made “interception[s] but those intercepted, court to be issuing a communication device received sent 10-408(c)(3). ....”§ The General within the State anywhere that distinction: Assembly gave drawing its reason for interception of the communications as to permit “so communication device is physical- of whether the regardless in which the of the court ly jurisdiction located within interception.” filed the time application (c)(4) here, exception, another not relevant contains Subsection has of the order after once concerning the reach been established. 10-408(c)(3) does main contention is petitioner’s com- oral or electronic
not authorize the are received or sent a communication munications that not rejected Special Appeals The Court of device this state. *28 it it “to look at what is required argument, believing this Davis, 10-408(c)(3) Md.App. at a vacuum.” 199 now reasoned, at It A.3d 190. to an intercept is indifferent whether “the entitlement or from Mt. message is inbound from Macao inculpatory Airy.... interception at an occurs
“... The critical situs which 1) suspect or both of two where the may places: either is subject interception is the of the order phone which a located, sending is phone of whether regardless 2) message; police and where message receiving intercepted mes- they monitor and hear the are located as wit, ‘listening post.’ sage, location jurisdictional must have who issues as as well authority places at least one those two over to be has occurred place where the crime over line, hand, on the other The other end prosecuted. be, may wherever it has nothing to do with the issue of If jurisdiction. appellant right were that the location of jurisdictional the other end of the line had significance, we contemplate would implications intercepting dread call.” conference Id., Md.App. at A.3d at 189. The majority agrees concludes, position, with this
“[bjecause Maryland’s wiretap
“interception”
statute defines
to include aural acquisition of communication in the same
term;
way that Title III
accept
defines the
we
and apply
(followed
Rodriguez
employed
by
rationale
other
courts), that interception occurs where the communications
redirected,
captured
were first
as
as
they
well
where
by
were first heard
law
agencies.”
enforcement
Davis,
Op. at
Section
states:
“If an application
ex
order made
Attorney General,
Prosecutor,
the State
aor State’s Attor-
ney,
(1)
an order issued under paragraph
of this subsection
authorize the
of communications received
or sent
a communication device anywhere within the
State so
to permit
the interception of the communication
regardless of whether the communication
physical-
device is
ly
located within the
the court which the
application was filed at the
interception.”
time
added).
(Emphasis
provision
This
a clear
establishes
limit on
the reach of an ex parte order authorizing interceptions of
communications: only those communications that either are
received or
sent
a communication
“anywhere
device
*29
the state” are covered. This
is the
reasonable construc-
tion of
words,
this
The
State,”
statute.
“within the
must
modify
words,
the immediately preceding
“communication de-
not,
vice,”
believes,
and
to
contrary
majority
what the
words,
Davis,
“communications received or sent.” See
op. 228-29,
is so. Section communications, oral communications electronic wire and than Thus, landlines, not subject being intercepted. to are also Moreover, intercept phones, are covered. simply device, be moni- object, there be an requires that which the communications, through interceptable tored for which are through they emanate and sought communications device, phone, is that communication transmitted. The result; it product, is the does object; the communication Thus, not, cannot, central to apart exist from the device. device, whose communica- parte order is the communication ex it, tions, out, there could are to be monitored. Without and no intercept interceptable no order because there could be be communication. §of 10- is the critical element
The communication device 408(c)(3), is the communications as well. It the transmitter of communications; the communica- receptacle for the and those that are “received may intercepted tions are be And, that inter- device.” sent a communication because role, require- state” must delineate the mediary “within the It of the communication device. physical ment of the location that is post” to the since not “listening could not refer and, thus, to it sent or which was being device monitored It that the communication device received. also relevant for, after, and immediately provides explanation comes be to or intercepted that the communication providing from communication device. were
Where, in the sub judice, as case from, by, nor communication device neither received sent state, of such communications thus, and, illegal. § 10-408 coverage outside the patently be, this, is, ambiguity. there and can no As 10-408(c)(2) notes, sup- I agree, petitioner It this construction. reads: ports (4) (3) of this paragraphs
“Except provided (1) of subsection, paragraph under an ex order issued interception of this authorize the subsection *30 or only electronic communications within the territorial the in jurisdiction court which the was application of filed.” added). (Emphasis This section establishes an initial limita- jurisdic- tion the of ex parte on reach the order. “Territorial tion,” here, as by relevant is defined Dictionary, Black’s Law (9th Ed.2009), as “[tjerritory government, the over which a courts, one of its or of jurisdiction.” one its subdivisions has In Maryland, jurisdiction” the state of the of “territorial located, circuit is county state court the in which the court is if city Baltimore, or of the that is where the presiding judge is (1973, §§ sitting. Md.Code. RepLVol., Supp.) 1-501 Where, therefore, & 1-503 of the Cts. & Jud. Proc. Article. parte the for an ex not application by order is made the General, Attorney Prosecutor, the State or a Attorney, State’s order, an ex court, may issued a circuit authorize the or, of communications within as county rele- vant, the it city jurisdiction. over which has 10-408(c)(2) 10-408(c)(3)’s § §
When
together
is read
with
provision
order,
that the ex parte
pursuant
if
to an application
General,
filed
Attorney
Prosecutor,
the State
or a
State’s Attorney, may “authorize the interception of communi-
cations received
sent
a communication
anywhere
device
within the
... regardless
State
whether the communication
is physically
device
located within the in
court
which the application
filed,”
it becomes clear
that the Legislature
expand
intended to
reach
the ex
parte order,
circumstance,
in that
beyond
juris-
the territorial
court,
diction of a circuit
but
only
the State’s borders.
10-408(c)(3)
The majority
concludes that
is ambiguous.
is nothing
There
in
language
10-408 to support that
Indeed,
interpretation.
the majority’s conclusion, in that re-
“forced,”
“strained,”
gard,
Kushell,
as
significance undervalued, product, favor its disregarded cess is modifier, communication, “any- by reading the location communication, State”, to the applicable where this *31 latter, the the As to than to communication device. rather grammatically to communication is the modifier the applying incorrect. 10-408(c)(3) we re- ambiguous were were
Even if discerning history guidance for legislative to consult quired it, enacting my legislative intent and the meaning its indication There is sufficient would be confirmed. conclusion the history which legislative upon portions in those 1049-51, 221-23, to relies, Davis, at op. at 43 A.3d majority intercep- to authorize the intended Legislature that establish take within the place those that only tion of state, by or communication device are “received sent a summary That what the within the state.” is anywhere for the addition legislation responsible Bill the Senate 10-408(c) and, thus, expan- the Maryland Wiretap the Act to orders, ex authority regarding parte court’s sion of circuit states: an ex Attorney parte
“This bill a State’s obtain permits communications sent interception authorizing order anywhere in the state telephone mobile or received locat- telephone physically of where the mobile regardless regardless of the territorial interception at the time of ed issues the order.” of the court that jurisdiction (2011) Davis, Md.App. (emphasis at A.3d at added). statute, law. as into signed It is consistent with does, emphasizes, just not summary statute Just communications, mobile tele- but those “sent received physical anywhere in the state.” reference to phone it could be merely phone recognizes location of the occurs; it need when the in the state anywhere jurisdiction issuing court. not be located Furthermore, Bill 153 is Background for Senate the stated the same effect: (an law, an parte granted “Under current ex order request party only and for the benefit one without giving notice to the adverse the adverse party providing order) party opportunity with an to contest the authorizing wire, oral, or electronic communications for communications its issued territorial jurisdiction application of the circuit court which the Therefore, filed. on a intercept communications mobile telephone, separate order must from be obtained circuit court in each which tele- phone might be moved.
“This bill obtaining multiple removes the need for ex orders providing multijurisdictional wiretap orders telephones.” from mobile added).
(Emphasis Background point This makes even It reasoning clearer. demonstrates the addition behind the (c)(3), process subsection in the recognizing explicitly that the *32 of critical, location the communication is for device it is that which is the receptacle transmitter of the communications subject to interception: intercept “to communications on a telephone, mobile a separate order must be obtained from the jurisdiction circuit court in each in which telephone the mobile might be moved.” itself,
As notes, the majority, Senator the Murphy, sponsor 153, stated, Bill, of Senate Bill a during hearing on the that of expanding parte reach ex orders issued circuit court judges in those limited circumstances contemplated subsec- (c)(3) tion would respond allow law enforcement to better to drug trafficking problems by enabling them to “weav[e] out counties jurisdictional and across one boundary after Hearing another within the state.” Before the Pro- Judicial (30 1991) added). ceedings (emphasis Committee Jan. This is yet another clear indication that the expansion sought by (c)(3) subsection to intended enhance law enforce- operations ment -within the of Maryland. borders Had the Legislature Maryland operate intended ex orders beyond State, the borders of the assuming it has that authori- Indeed, it ty, certainly should and could have said so. as I earlier, to have meant Legislature presumed “the stated Corp., it meant.” Arundel 388 Md. what it said and said what at at 894. 860 A.2d III,
Moreover, on Title as majority’s I reliance believe courts, So, too, is its misplaced. federal interpreted by ... gloss determining the federal “adoption] [of] jurisdiction parte wiretap for an ex order.” scope proper at Id. at 43 A.3d 1046. Act, true language Wiretap
It is a language Title III in unexpectedly, closely tracks the not however, overstates and provisions; majority number are similarity. simply this The similarities overemphasizes state overarching justify sufficiently interpreting not In as federal act. statutory an identical manner scheme fact, Mary- minor respects in addition to “those which the its counterpart,” law is more restrictive than federal land Davis, at Title III differs Md.App. A.3d re- extremely important Maryland offspring from its while, III a jurisdictional Title makes spect: purposes, in- interceptions of communications clear distinction between a involving phone, and those volving landline 2518(3), 10-408(c)(3), section does not. U.S.C. courts, by the interpretation,
In to the federal deferring instructive, dispositive, federal even statute statute, majori- comparable Maryland interpretation define “inter- ty fact both statutes persuaded true, in the there is critical way. exact same While cept” inter- consequence on difference—the effect and *33 signifi- has phones communication from mobile cepting —that definition “intercept,” today, this Ill’s cance to case. Title among communication those includes electronic communication devices. using prescribed acquired 2510(4). enactment, it communica- encompassed only § itsAt landlines; over it did not cover electronic occurring tions III Once Title was amended account communications. the need to—and telephones, Congress recognized mobile jurisdictional on change effect ex orders involv- did— ing phones. Maryland “intercept” pro- definition of has a similar
gression, Appeals acknowledged which Court of Special and on which it commented: original
“Neither
III nor
original Maryland
Title
...Act
Wiretapping
covered communications between cellu-
not, indeed,
lar phones.
expanded coverage
Such
would
side,
follow until
on
the federal
or until 1988 on the
v. Vopper,
Bartnicki
514, 524,
In
side.
532 U.S.
1753,
(2001),
S.Ct.
‘As enacted III did not apply Title to the monitor- In ing of radio transmissions. the Electronic Communi- Privacy however, cations Act of 100 Stat. Congress enlarged coverage to prohibit Title III of “electronic” as interruption well as oral and wire amendment, By communications. of that reason as well as a 1994 applied telephone amendment which to cordless communications, applies Stat. Title III now conversations over both cellular and cordless phones.’
“Maryland followed the federal lead ch. enacting 607 of 10-401, the Acts of 1988. To the definitions which already included “wire communication” and “oral communi- cation,” again Maryland, following example, Title Ill’s add- 10-401(11) ed as definition “electronic communica- tion”:
‘(ll)(i) ‘Electronic any communication’ means transfer of signs, sounds, data, signals, writing, images, or intelli- gence of any part nature transmitted whole or wire, radio, electromagnetic, photoelectronic, or photoop- tical system.’ 10-402(a),
“Whereas operational criminalizing provi- sion, originally only prohibited had interception wire communications, added, and oral again following it now Title *34 to protective Ill’s “electronic communication” example, coverages:
‘(a) pro- otherwise Except specifically Unlawful as acts. — to: any it unlawful for person vided in this subtitle (1) to intercept, procure or Wilfully intercept, endeavor intercept, or endeavor to any intercept other person oral, any wire, or electronic communication[.]’ 10-402(a) § to add because necessary “It was ‘electronic’ cellular neither a ‘wire communication’ a communication is therefore, and, covered an was not nor ‘oral communication’ not do until law. it did so by existing Although cellu- clearly involving § 10-402 communications now covers law, therefore covers phones. lar amended present case.” Davis, 285-86, (emphasis 21 A.3d at Md.App. 187-88 omitted). unlike did carve out Maryland, Congress, not from mobile jurisdictional niche for communications derived 10-408(c)(3) § amend for that purpose. it not phones; did majority court nor the appellate Neither the intermediate 2518(3), § with specifically addresses the difference between draws, it jurisdictionally, when regard the distinction a mobile wiretapping are obtained from the communications 10-408(c)(3), no § which draws such distinction. phone, In its along This is an difference. with important language communications” inclusion “electronic “wire, III, 2518(3), in 18 Title U.S.C. substituted Congress, “(and inserted, oral” and for “wire or electronic” in the outside that but within the United States a Federal case device authorized Electronic jurisdiction),” court such Communications added). This Privacy (emphasis Act of Pub.L. 99-508 first, it created accomplished things: amendment two 2518(3), prohibition limiting exception general to the juris- the territorial interceptions to “communications within second, by, in which sitting” diction the court lines, only pursuant but interception across state authorizing court, and of ex a Federal to an issued sent received a mobile device. Section thus, 2518(3), 2510(4), authorizes the “aural ... acquisition,” communication,” of an “oral communication” or “wire *35 court, within the territorial issuing while ... authorizing acquisition” “aural of an communi- “electronic involving cation” a mobile device “within the United States.” sense, given It makes help the need to law enforcement better function, latitude, perform greater their to allow albeit borders, country’s limits of the in the case of mobile phones, creating jurisdictional while anchor landline communications. contrast,
In Maryland § Legislature, amending 10- 401(3) communications,” § and 10-402 include “electronic 10-408(c)(3) did not amend jurisdictional to draw such a distinction. does, § Consequently, majority read as the 10- 408(c)(3) authorizes the any communication— electronic, limit, wire and geographic without occurring anywhere or, in the United as majority opinion States — Davis, 230-31, suggests, 1055-56, at op. 43 A.3d at certainly states, Davis, of Special Appeals’ opinion Court 287, 189, world, 199 at 21 Md.App. anywhere A.3d at in the as long as the law enforcement officers are located within the attenuated, state. This reading the statute is not it is unconstitutional under the Fourth Amendment. See Katz v. States, 347, 362, 507, 517, United 389 U.S. 88 S.Ct. 19 L.Ed.2d (1967) 576, (“[RJeasonable (Harlan, J., 588 concurring) expec- privacy tations of may be defeated electronic as well as invasion.”). physical III,
The
Wiretap statute was required, by Title
be at least as protective of individual rights as the federal act.
Kahn,
143, 151,
977,
See United States v.
415 U.S.
94 S.Ct.
982,
(1974);
69,
L.Ed.2d 225
Mustafa,
as the does violates issue, a state law court permits a circuit pretation execute, an order that authorizes officer to enforcement any in the individual of the communications Davis, states, China, States, or, Judge Moylan United 189, whether, not, 21 A.3d at Md.App. which the monitored and from being communication device to the connection any tangible emanate has as this statute is only requirement, Maryland. state of form, construed, and probable limits of content beyond the statute, is that the communication cause set forth Maryland. officers in This investigating police heard and, any degree, if it were to rights of individual protective not it justify infringement tenuous to the level of it is far too privacy. makes individual upon *36 2518(3) it, interpreting and the federal cases
Premised on 4, interpretation believes that its supra see majority note 10-408(c)(3) with the Maryland par on merely places §of therefore, of and, protective is no less courts federal Davis, 223-24, at op. those courts. than are rights individual There is a real difference agree. at 1051. I do not 43 A.3d jurisdiction. and federal between State to the common dating back long standing principle, It is a of its law, is limited to the confines jurisdiction that a state’s Co., 423, 430, v. The Ferry St. Louis 78 U.S. own borders. See (1870) (“If 423, 192, of a legislature L.Ed. 194 11 20 Wall. another citizens or property should enact that the State in the same manner as the should be taxed country State or to subject limits and its within its own property persons whatsoever, such a law other manner authority, any if in with the most nullity much a as conflict be as would necessary as Jurisdiction is constitutional inhibition. explicit v. action.”); State judicial as to valid legislative to valid (“This (NC) (1799) 109 state Knight, 3 N.C. Hayw. 2 a citizen Virginia that an act done cannot declare in this state: our punishable criminal and shall be Virginia state, except to the limits of this only laws can extend penal
255 citizens.”); Beale, our own see also Joseph to H. Jurisdic- State, (1923). Sovereign tion Harv. L.Rev. jurisdiction” This broad of “territorial has an principle impact contexts, regard, in several to one example, with state’s ability another, to that criminalize conduct occurred or a ability state law enforcement officer’s a criminal pursue beyond the officer’s state’s borders or to make an arrest in a neighboring state that express without state’s content. See Butler, 67, 72-73, (1999) v. State 353 Md. 724 A.2d (“Territorial jurisdiction concept describes the that when an offense is committed the boundaries the court’s jurisdictional geographic territory, generally which is within states, respective the boundaries of the the case may be tried state.”). in that principle applies That no less force in with communications, Authorizing this context. which were re- therefore, and, disclosed, ceived communication devices entirely emanates, outside the state from which the order intercepted by be an order issued is as state violative the permissible scope state’s as are the more statement, traditional Judge Moylan’s contexts. that “the intercept entitlement indifferent to an inculpato- whether ry message Davis, from Mt. Airy,” inbound Macao or from 189, is, Md.App. 21 A.3d at I for the reasons have stated, simply incorrect.
This is say not to a state court not exercise extra- jurisdiction. but, It may, unless, submit, territorial I express- law, empowered ly of, federal it must context *37 to, fact, limited the State. In Maryland judges the have been authorized to power exercise outside the of their courts. The General Assembly relaxed restrictions the enu- 2518(3) §in merated it Act, when promulgated the particular, 10-408(c)(3), § by but it did so expanding the jurisdictional reach ex by orders issued circuit court judges response applications by Attorney made the General, the State Prosecutor or Attorney. And, a State’s then, limited, to, it I as believe it had expansion that to the situation, event, intra-state appropriate, since any the coun- based, courts are a unit of ty, where circuit is State government. contrast, are federal district courts units federal
By While, sure, they operate jurisdic- to be government. boundaries, courts, as do when tional state Fed.R.Civ.P. extra-territorially, it logical authorized to act is that defined, limited authority governmental would be and it is a That extra- part. explains structure of which 2518(3). seen, in As we case territorial feature of have court inter- phones, empowered to authorize jurisdiction, anywhere with in the ceptions co-extensive federal Therefore, it not that a state court United States. does follow that a acquires authority the same extra-territorial federal they the statutes under which simply court does because governmental similar. The must be operate are structure here, case, when, statutes, In any considered. one statute, also has a substantial fea- distinguishing federal differentiation, ture, jurisdictional purposes, be- i.e. permitted the sources for the various communications tween surely intercepted, to be cannot be the case. sufficient, any,
I
mind
persuaded
am not
there
never
gloss”
of a
for the
adoption
interpreta-
basis for
“federal
10-408(c)(3).
interpreting
tion of
The
case
Title
primary
III,
2518(3),
majority
more
on
particularly,
which
130, is,
relies,
believe,
968 F.2d
I
consistent
heavily
Rodriguez,
my reading
provision. Notably, Rodriguez
with
of this
dealt
on
propriety
wiretapping
with the
of interstate
based
Id.,
court
York.
As the statutes, judiciary non-Maryland wiretap on interpretations those other states5 is since including passed misplaced, Tavarez, (10th Cir.1994) (Okla 5. United States v. F.3d McCormick, Act); Security of State v. 719 So.2d homa Communication
257 none of it mentions with communications that the cases deals Davis, occur in wholly question.6 op. outside the 226-27, at at 43 A.3d 1052-53.
I do not with agree majority’s interpretation 10- 408(c) and, I accordingly, dissent.
Judge has joins GREENE authorized me to state that he this dissenting opinion. 1220, (Florida (Fla.App.1998) Statute); Wiretap 1222 Kadoranian v. 1061, (1992)
Bellingham
Dep’t,
Police
119 Wash.2d
829 P.2d
1065
Statute).
(Washington Privacy
Cosme,
persuaded by
reasoning
6.
I am not
of United States v.
2011
(S.D.Cal.2011),
WL
2011 U.S. Dist.
LEXIS
on which
majority
justify
interpretation
relies to
its
Act as
interceptions
authorizing
wholly
of communications
that occur
outside
255-56,
Maryland.
previously explain,
state of
As I
supra at
1069-70,
A.3d at
there is a clear distinction between
and federal
state
note,
therefore,
jurisdiction.
important
It is
that
the ex
court,
2518(3),
by
in Cosme
pursuant
was issued
a federal
district
*1,
court,
id. at
Dist.
2011 U.S.
LEXIS 94742 at *7. While
as
that
we
seen, operates
jurisdictional
have
within
boundaries
articulated
extra-territorially,
when authorized
act
Fed.R.Civ.P.
as it is
2518(3),
so,
government,
it
do
as a unit of the federal
within the
limits of the United States.
proper
Had
wiretap
the Cosme court held that it was
to conduct a
Mexico,
Davis,
analogous
would
majority's holding,
case
to the
214-15,
and,
it,
op. at