Lead Opinion
Montgomery County law enforcement officers, situated at a “listening post” in Montgomery County, Maryland, and operating under an ex parte order issued by a judge of the Circuit Court for Montgomery County properly under the Maryland Wiretapping and Electronic Surveillance Act, intercepted a mobile phone communication from a target mobile phone, caller, and receiver located in Virginia. Section 10 — 408(c) of the Maryland Code, Courts and Judicial Proceedings Article, permits a Maryland judge to enter an ex parte order authorizing the interception of “wire, oral, or electronic communications ... sent by a communication device anywhere within the State.” As a result of the intercepted communication, the police seized from Petitioner, Tyrone Davis (the caller), controlled dangerous substances when he returned to his Maryland residence. Petitioner moved in the Circuit Court to suppress all evidence obtained by police through the asserted illegal search and seizure, on the basis that the wiretap order did not authorize interception of the extraterritorial communication and the court issuing the order could not authorize such an interception. The hearing judge denied the motion, citing federal case law defining the location of an “interception” as where the mobile communication was first intercepted or redirected and where it was first heard by law enforcement officers. On appeal, the Court of Special Appeals affirmed the denial of the motion.
Although, in a few aspects, Maryland’s wiretapping statute is more protective of
I. Factual and Legal Proceedings
The following was gleaned from the record of the suppression hearing. On 8 September 2006, the State’s Attorney for Montgomery County filed an ex parte application to intercept and record wire, oral, and electronic communications from Petitioner’s mobile cell phone. Petitioner lived in Silver Spring, Montgomery County, Maryland. The application was supported by affidavits from a Montgomery County Police Department Detective and a Special Agent for the United States Drag Enforcement Agency, who were coordinating an ongoing investigation into the distribution of controlled dangerous substances within Montgomery County. Petitioner was one of the targets of the investigation. The affidavits contained evidence, gathered pursuant to wiretaps approved previously, evincing probable cause to believe that Davis was transporting controlled dangerous substances into Maryland from outside the state. On the day the wiretap application pertinent to the present case was filed, Judge Ann Harrington of the Circuit Court issued an order approving the application. The order, on its face, allowed investigators to intercept Davis’s mobile phone communications
On 11 September 2006, Montgomery County police (stationed at a covert location in Montgomery County) were monitoring the communications on Davis’s mobile phone and overheard a call that, based on the officers’ training and experience, indicated that Davis was approaching the Washington, D.C., area after a journey to Miami, Florida, and potentially transporting controlled dangerous substances into Maryland. Approximately one hour after the call was intercepted, two officers confronted Davis as he arrived at his residence in Montgomery County. The officers concocted a cover story, which they told Davis, that they believed that he matched the description of a suspect in a recently committed robbery and requested to search Davis, his vehicle, and a suitcase in the trunk of his car. During the search, the officers found over nine pounds of marijuana in the suitcase.
On 22 October 2009, a grand jury indicted Davis for possessing marijuana on 11 September 2006, “in sufficient quantity to indicate reasonably under all circumstance an intent to distribute the controlled substance,” in violation of Maryland Code (1957, 2002 RepLVol.), Criminal Law Article, § 5-602(2). Petitioner filed a pre-trial, omnibus motion, which included a request to suppress evidence obtained through an illegal search and seizure under Maryland Rule 2-252. Judge Michael Algeo of the Circuit Court presided over the suppression motion hearing on 8 April 2010.
At the hearing, Petitioner’s trial counsel argued that the police violated Maryland Code (1957, 2006 RepLVol.) Courts & Judicial Proceedings Article, § 10-408(c)(3), by intercepting a call made from Davis’s cell phone, registered to a Virginia address, to a recipient located in Virginia, while Davis also was in Virginia when the call was placed and during the entire communication. Judge Algeo reasoned that the definition of “intercept” was the same under the Maryland wiretap statute and Title III and that the federal court’s interpretation of “intercept” in United States v. Rodriguez,
Davis noted timely an appeal to the Court of Special Appeals. A panel of the intermediate appellate court, in Davis v. State,
interception ... may be at either or both of two places: 1) where the suspect phone which is the subject of the interception order is located, regardless of whether that phone is sending a message or receiving a message; and 2) where the police are located as the monitor and hear the intercepted message, to wit, the location of the “listening post.” Id.
Because the Montgomery County police’s “listening post” was located within Montgomery County, Maryland, the intermediate appellate court concluded that the interception of the communication from Davis’s mobile phone, although associated physically with Virginia, was lawful. Davis,
Did the Court of Special Appeals err in affirming the trial court’s decision denying Mr. Davis’s motion to suppress derivative evidence seized by Montgomery County police after the police intercepted Mr. Davis’s phone call from his Virginia phone, placed while he was in Virginia, to a Virginia phone line when the call’s recipient was also in Virginia, in violation of the Maryland Wiretapping and Electronic Surveillance Act, Md.Code Ann. Cts. & Jud. Proc. § 10-401, et seq.?
As foretold earlier in this opinion, we conclude that interception of a wire, oral, or electronic communication, for the purposes of the Maryland wiretap statute, occurs where law enforcement officers capture or redirect first the contents of the communication overheard by the wiretap and where they heard originally the communication. Therefore, as long as the “listening post” was located within the territorial jurisdiction of the court issuing the ex parte wiretap order, neither the physical location of the mobile phone at the time the call was placed and during the communication or the recipient of the call are material. Accordingly, we affirm the judgment of the Court of Special Appeals that the Circuit Court for Montgomery County denied properly Petitioner’s motion to suppress.
II. Standard of Review
When interpreting a statute, a court’s goal is “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied.... ” Ray v. State,
If, however, the language is ambiguous, we move on to examine the “legislative history, case law, statutory purpose, as well as the structure of the statute” to aid us in ascertaining the intent of the Legislature. Ray,
Reviewing a trial court’s disposition of a motion to suppress evidence, we view the evidence presented at the hearing, along with any reasonable inferences drawable therefrom, in a light most favorable to the prevailing party. Bailey v. State,
III. Discussion
In 1968, Congress enacted Title III, which provided minimum standards for the interception of oral, wire, and electronic communications during criminal investigations and prosecution. Mustafa v. State,
An exception to the general prohibition on interception was created to enable law enforcement investigators to capture evidence of certain enumerated crimes, including dealing in a controlled dangerous substance. Cts. & Jud. Proc., § 10-402(c)(2)(ii)(l)(L). In order to obtain evidence of the enumerated crimes, the “Attorney General, a State Prosecutor, or a State’s Attorney may apply to a judge of competent jurisdiction, and the judge, in accordance with the provisions of § 10-408 ..., may grant an order authorizing the interception of wire, oral, or electronic communications.... ” Cts. & Jud. Proc., § 10^06(a).
To obtain an ex parte order authorizing a wiretap, a law enforcement officer must provide a judge (of competent jurisdiction) with a written application, upon oath or affirmation, that includes a “full and complete statement of facts” justifying the order, including: details about the offense that is being, or will be, committed; a particular description of the communication to be intercepted; a description of previous failed investigative procedures or an explanation as to why they are too dangerous to be used; the time period for interception; and a list of previous wiretap applications. Cts. & Jud. Proc., § 10 — 408(a)(l)(i)—(v). A judge may enter an ex parte order, upon receipt of the application, authorizing
interception of wire, oral, or electronic communications within the territorial jurisdiction permitted under paragraphs (2) and (3) of this subsection, if the judge determines (i) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 10-406 of this subtitle; (ii) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception; (iii) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;.... Cts. & Jud. Proc., § 10 — 408(c)(1) (emphasis added).
An ex parte order “may authorize the interception of wire, oral, or electronic communications only within the territorial jurisdiction of the court in which the application was filed.” Cts. & Jud. Proc., § 10-408(c)(2) (emphasis added). Section § 10-408(c)(3) expands on the physical jurisdiction aspect of the wiretap providing that an order may
authorize the interception of communications received or sent by a communication device anywhere within the State so as to permit the interception of the communications regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed at the time of the interception. The application must allege that the offense being investigated may transpire in the jurisdictionof the court in which the application is filed. (Emphasis added.).
The provisions of § 10-408(c) relating to jurisdiction are the crux of the present case. Petitioner maintains that § 10-408(c)(3) allows Maryland law enforcement officers, operating under an ex parte order issued by a Maryland circuit court judge, to intercept communications only when the target “electronic, mechanical, or other device” is located within Maryland. Petitioner and his cell phone were located in Virginia when he initiated a call to a person, also situated in Virginia, and the Montgomery County Police intercepted the message pertinent to this case. Therefore, Petitioner contends the plain language of § 10-408(c)(3) renders the interception unlawful. Respondent, on the other hand, points us to assertedly relevant federal case law that holds that, so long as the interception of the mobile communication occurs within the geographical jurisdiction of the court that issued the order, the interception is valid. After a careful reading of the statute and the overall scheme, we conclude that the language of § 10-408(c) is subject to more than one reasonable interpretation, and, therefore, we must look to the relevant legislative history to ascertain the intent of the Legislature.
Section 10-408(c) was added to the Maryland wiretap statute in 1991. 1991 Md. Laws 285. The amendment was added to account for the development of cellular phone technology.
In 1993, the words “or a paging device” were added, following the phrase “a mobile phone,” in § 10-408(c). 1993 Md. Laws 598. Later, in response to our holdings in Perry v. State,
In addition to this legislative history, relevant federal and state court opinions provide a persuasive approach for interpreting § 10-408 and applying it to the facts developed at the suppression hearing in the present case. As we have noted previously, Maryland’s wiretap statutory scheme is an “offspring” of Title III. State v. Bailey,
The provision in Title III analogous to § 10-408(c)(3) provides, in relevant part:
Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction), if the judge determines on the basis of the facts submitted by the applicant that—
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter [18 USCS § 2516];
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous ... 18 U.S.C. § 2518(3) (2011) (emphasis added).
The seminal federal case addressing where “interception” of a telephone call occurs under Title III is United States v. Rodriguez,
Other federal courts followed the Rodriguez approach in determining challenges to the propriety of the jurisdiction of the issuing court by focusing on where the “interception” occurred or, alternatively, by looking to where the calling or receiving phones were located. See United States v. Denman,
State statutes similar to Title III have been interpreted consistently, relying on Rodriguez. See United States v. Tavarez,
Petitioner maintains that none of the federal and state cases addresses the issue of interception of a wholly extraterritorial communication and the result in each case, discussed supra, and, moreover, were rooted in the national umbrella of federal court jurisdiction, vice states and state jurisdiction over its counties and municipalities. Recently, however, the United States District Court for the Southern District of California addressed the question of interception of wholly extraterritorial mobile communications in United States v. Cosme,
The defendant argued that Title III did not authorize interception of communications initiated and received entirely within another country. Cosme,
Petitioner urges us to construe the phase “anywhere within the state” in § 10-408(c)(3) of the Maryland statute as modifying “a communication device.” This narrow reading would require Maryland-based law enforcement officers, operating under an otherwise valid ex parte wiretap order, to shut down interception of mobile phone communications when the target phone enters another state or the District of Columbia. This would present an enormous logistical and technological challenge to law enforcement operators and, in cases where the subject of an investigation crosses back and forth over state or other boundary lines (as in a drug distribution operation in Montgomery County and/or the District of Columbia), the task may be impossible.
The widespread use and highly mobile nature of cellular phones, especially in the circumstances of drug distribution rings, presents a unique challenge for courts in determining the proper jurisdiction for acting on applications for ex parte wiretap orders. We must determine what the Legislature was trying to regulate. We do so by looking at the entirety of the wiretap statute. The target of the statute is “interception”; therefore, critical to our interpretation of § 10-408(c) is the definition of “interception.” Under § 10-401(3), the definition of interception is “the aural or other acquisition of the contents of any wire, electronic, or oral communication.... ” The common and generally most understood meaning of “aural” is “of or relating to the ear or to the sense of hearing.” Webster’s Ninth New Collegiate Dictionary 116 (1989). Because “interception” is the tipping point of the statute, it provides naturally the jurisdictional anchor for an ex parte order authorizing law enforcement officers to intercept wire, oral, or electronic communications. Where “interception” occurs and, therefore, where jurisdiction is conferred, has been addressed by numerous federal
The Cosme case, decided recently, involved an analogous circumstance to the case at hand. There, the United States District Court for the Southern District of California expanded the analysis undertaken initially in Rodriguez, and later in Luong, that the location of “interception” is the jurisdictional focus for a wiretap order, despite the fact that a mobile phone conversation was initiated and received within Mexico entirely. Thus, Cosme makes clear that the location of interception is the essential element of jurisdiction, rather than the notion of a national umbrella federal jurisdiction (when federal courts are concerned) being the animating force for the results reached under the Title III cases. Nevertheless, an ex parte order may be issued by a Maryland circuit court only if the application alleges “that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed.” Cts. & Jud. Proc., § 10-408(c)(3). Establishing the location of the alleged criminal activity under investigation places a necessary and reasonable constraint on applicants for ex parte wiretap orders.
Petitioner maintains that the wording of § 10-408(c)(3) restricts interception to communication devices only when they are located within Maryland. This interpretation is not in accordance with the intent of the Legislature. When the legislature added § 10-408(c)(3) to the statutory scheme, in addition to the geographically restrictive clause “within the State,” the phrase “so as to permit the interception of the communications regardless of whether the mobile telephone is located physically within the jurisdiction of the court in which the application was filed ...” was added. The purpose of this phrase was to broaden a circuit court’s authority and the effectiveness of law enforcement investigators wiretapping mobile phones, without losing continuity due to jurisdictional constraints. This interpretation is supported by the legislative history of § 10 — 401(3)(c), which was designed to enhance the authority of judges issuing ex parte wiretap orders, rather than restricting their authority. In 1991, the sponsor of Senate Bill 193, which became eventually § 10 — 401(3)(c), testified that in “the midst of a drug epidemic,” drug traffickers were exploiting the jurisdictional restrictions of the current wiretap laws which tied “the hands of police trying to apprehend drug traffickers and put them in prison.”
In the present case, the ex parte order was issued by the Circuit Court for Montgomery County, the county where the alleged drug distribution activities were occurring. The “listening post,” where law enforcement officers first heard the communications intercepted from Petitioner’s mobile phone, was located in a covert facility within Montgomery County. Although the Petitioner was situated in Virginia
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
BELL, C.J., and GREENE, J. dissent.
Notes
. The order gave authority to intercept “telephonic communications, short message service text messaging, caller identification information, electronic photographs, electronic video, precise positioning information, and cellular tower location data ...” associated with the mobile phone number 757-3 5 8-15XX. The phone was registered to Petitioner at a Hampton, Virginia, address.
. It is undisputed that Davis consented to the search of his person and vehicle; however, Davis maintained at the motion hearing that he did not consent to the search of the suitcase, where the drugs were found. Davis did not dispute that the suitcase belonged to him.
. "Intercept” is defined identically in Title III. 18 U.S.C. § 2510(4) (2011).
. The type of cellular phones in use at the time of the amendment of the statute were car phones, rather than the ubiquitous portable mobile phones carried by most of society today.
. It is impossible to know in advance of intercepting a mobile phone communication where the call will be initiated or the situs of the recipient of the call. Even while the phone call is unfolding, determination of the precise, real-time location of the phone may be very difficult. Clifford S. Fishman & Anne T. McKenna, Wiretapping & Eavesdropping: Surveillance in the Internet Age § 2:70, at 2-117 (3d ed.2008).
. Respondent advances also the "rule of the last antecedent” as a basis for interpreting the phrase "anywhere in the State” as modifying "interception,” rather than “communication device.” See Sullivan v. Dixon,
. We rely on the testimony of the bill sponsor in determining the legislative intent; especially where there were minimal amendments to the bill introduced after that testimony. Jack Schwartz & Amanda Stakem Conn, The Court of Appeals at the Cocktail Party: The Use and Misuse of Legislative History, 54 Md. L.Rev. 432, 445-46, 462 (1995) (stating that "sponsor testimony ... [is] likely to be especially reliable evidence of the purpose or goal underlying a statute [and, i]f a bill goes through the legislative process essentially unchanged, the court should give significant weight to the views of the sponsor”).
Dissenting Opinion
dissenting, in which GREENE, J., joins.
Following the denial of his motion to suppress evidence he alleged was obtained by an illegal wiretap in violation of Maryland Code (1957, 2006 Repl.Vol., 2011 Supp.) § 10-408(c) of the Cts. & Jud. Proc. Article,
I.
The facts relevant to the resolution of this appeal are straightforward and undisputed. The petitioner, a resident of Silver Spring, Maryland, was the target of an investigation of the organized distribution of controlled substances within Montgomery County. Pursuant to that investigation, the State’s Attorney for Montgomery County filed, in the Circuit Court for Montgomery County, an ex parte application to intercept and record wire, oral, and electronic communications from the petitioner’s mobile cell phone, which was registered in Virginia. On the basis of the application and the supporting affidavits, a judge of that court approved the application, executing an order authorizing interception, from the petitioner’s mobile phone, of “telephonic communications, short message service text messaging, caller identification information, electronic photographs, electronic video, precise positioning information, and cellular tower location data” and requiring the petitioner’s mobile service provider, T-Mobile, to provide position and caller identification information, without geographic limit. Thereafter, while stationed at a “listening post” — a covert location within the county, established for the purpose of monitoring the petitioner’s communications — the Montgomery County Police overheard a telephone call, placed by the petitioner in Virginia, from his Virginia mobile phone, to a Virginia telephone line. On the basis of the information they thus received, believing that the petitioner was transporting dangerous substances from Miami, Florida into Maryland, the petitioner was confronted by the officers at his residence in Montgomery County, searched, resulting in the seizure of over nine pounds of marijuana from his suitcase and, eventually, arrested.
The petitioner’s motion to suppress evidence was made pursuant to § 10 — 408(i)(l).
The majority holds that “interception of a wire, oral, or electronic communication, for the purposes of the Maryland wiretap statute, occurs where law enforcement officers capture or redirect first the contents of the communication overheard by the wiretap and where they heard originally the communication.” Davis, op. at 218,
Turning first to a consideration of the legislative purpose underlying the enactment of the Maryland Wiretapping and Electronic Surveillance Law, Md.Code. (1957, 2006 Repl.Vol.) §§ 10-401—10-414 of the Cts. & Jud. Proc. Article, Davis, op. at 219-20,
From this overview of federal case law,
I disagree. Section 10-408(c)(3) is clear and unambiguous. Its plain language requires that, for lawful interception to occur, the communication device from which the wire, oral or electronic communication is to be intercepted, must be within the state. Holding otherwise impermissibly expands the authority of a circuit court, pursuant to § 10-408(c)(3), to issue an order that, beyond the location of a “listening post,” need not establish a connection, through the device wiretapped, between the party whose communication is being intercepted, and the state of Maryland, and has neither boundaries nor standards. Its reach could be anywhere in the United States and, indeed, the world. Furthermore, § 10-408(c)(3)’s legislative history confirms my construction. It demonstrates an intent to expand the statute’s reach beyond a court’s territorial boundary, to be sure, but only within the state, and not outside of it. The majority’s reliance on Title III to interpret § 10-408(c)(3) is also misplaced, as that statutory scheme is considerably more expansive in its reach; it contemplates federal jurisdiction and, therefore, unlike state jurisdiction, requires that federal law enforcement be able to operate across state lines.
II.
To determine the intended reach of the Maryland Wiretapping and Electronic Surveillance Act, Md.Code. (1957, 2006 Repl.Vol.) §§ 10-401-10-414 of the Cts. & Jud. Proc. Article, we are guided by the rules of statutory interpretation. We “begin[ ] with the plain language of the statute,” and look to “ordinary, popular understanding of the English language [to] dictate[ ] interpretation of its terminology.” Kushell v. Dep’t of Natural Res.,
It is true, as the majority points out, Davis, op. at 219-20,
As indicated, Title III contains a general prohibition against the interception, “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device,” 18 U.S.C. § 2510(4), and disclosure of wire, oral, or electronic communications. That portion of the Act, 18 U.S.C. § 2511, provides, in relevant part:
“(1) Except as otherwise specifically provided in this chapter any person who—
“(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
“(b) intentionally uses, endeavors to use, or procures any person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
“(i) such device is affixed to, or otherwise transmits a signal through, a "wire, cable, or other like connection used in wire communication; or
“(ii) such device transmits communications by radio, or interferes with the transmission of such communication ....
“(c) intentionally discloses, or endeavors to disclose, to any person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
“(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.... ”
Moreover, “[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding ... if the disclosure of that information would be in violation of [the] chapter.” 18 U.S.C. § 2515.
There is an exception to this general prohibition, however. 18 U.S.C. § 2516(1). That section allows the Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General to “authorize an application to a Federal judge of competent jurisdiction” for “an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of’ certain
“(1) Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application----
“(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction), if the judge determines on the basis of the facts submitted by the applicant that—
“(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 [supra ] of this chapter;
“(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
“(c) normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried or to be too dangerous.... ” (Emphasis added).
With regard to state authorities and state judges, 18 U.S.C. § 2516(2) provides:
“The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.”
Like Title III, the Maryland Act contains a general prohibition against “[w]illfully intercepting], endeavoring] to intercept, or procuring] any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” § 10-402(a)(l). It also, again like Title III, defines “interception” as the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” § 10-401(3). The Maryland Act likewise contains exceptions to the general prohibition. Section 10-406(a) permits the Attorney General, State Prosecutor, or any State’s Attorney to “apply to a judge of competent jurisdiction, and the judge, in accordance with the provisions of § 10-408 ..., [to] grant an order
The Maryland analog to § 2518 is § 10-408. That section prescribes the process by which the Attorney General, State Prosecutor, or a State’s Attorney may obtain an ex parte interception order from a judge of competent jurisdiction and the jurisdictional reach of that order. Subsection (c)(1) delineates the showings required to be made by the applicant for an ex parte order, prerequisite to the issuance of such order. Upon those showings having been made, subsection (c)(2) provides that any ex parte order issued “may authorize the interception of wire, oral, or electronic communications only within the territorial jurisdiction of the court in which the application was filed.” Where, however, the application is filed by the Attorney General, the State Prosecutor, or, as in this case, a State’s Attorney, the order may authorize communications made outside of the territorial jurisdiction of the issuing court to be intercepted, but only those “interception[s] of communications received or sent by a communication device anywhere within the State ....”§ 10-408(c)(3). The General Assembly gave its reason for drawing that distinction:
“so as to permit the interception of the communications regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed at the time of the interception.”
Subsection (c)(4) contains another exception, not relevant here, concerning the reach of the order after jurisdiction once has been established.
The petitioner’s main contention is that § 10-408(c)(3) does not authorize the interception of wire, oral or electronic communications that are not received or sent by a communication device in this state. The Court of Special Appeals rejected this argument, believing that it required it “to look at what is now § 10-408(c)(3) in a vacuum.” Davis,
“the entitlement to intercept is indifferent to whether an inculpatory message is inbound from Macao or from Mt. Airy....
“... The critical situs at which an interception occurs may be at either or both of two places: 1) where the suspect phone which is the subject of the interception order is located, regardless of whether that phone is sending a message or receiving a message; and 2) where the police are located as they monitor and hear the intercepted message, to wit, the location of the ‘listening post.’ The judge who issues the interception order must have jurisdictional authority over at least one of those two places as well as over the place where the crime has occurred and is to be prosecuted. The other end of the line, on the other hand, wherever it may be, has nothing to do with the issue of jurisdiction. If the appellant were right that the location of the other end of the line had jurisdictional significance, we would dread to contemplate the implications of intercepting a conference call.”
Id.,
“[bjecause Maryland’s wiretap statute defines “interception” to include aural acquisition of communication in the same way that Title III defines the term; we accept and apply the rationale employed in Rodriguez (followed by other courts), that interception occurswhere the communications were first captured or redirected, as well as where they were first heard by law enforcement agencies.”
Davis, Op. at 230,
Section 10-408(c)(3) states:
“If an application for an ex parte order is made by the Attorney General, the State Prosecutor, or a State’s Attorney, an order issued under paragraph (1) of this subsection may authorize the interception of communications received or sent by a communication device anywhere within the State so as to permit the interception of the communication regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed at the time of the interception.”
(Emphasis added). This provision establishes a clear limit on the reach of an ex parte order authorizing interceptions of communications: only those communications that either are received or sent by a communication device “anywhere within the state” are covered. This is the only reasonable construction of this statute. The words, “within the State,” must modify the immediately preceding words, “communication device,” and not, contrary to what the majority believes, the words, “communications received or sent.” See Davis, op. at 228-29,
The communication device is the critical element of § 10-408(c)(3), as well. It is the transmitter of the communications and the receptacle for the communications; the communications that may be intercepted are those that are “received or sent by a communication device.” And, because of that intermediary role, “within the state” must delineate the requirement of the physical location of the communication device. It could not refer to the “listening post” since that is not the device being monitored and, thus, to which it was sent or received. It also is relevant that the communication device comes immediately after, and provides an explanation for, providing that the communication to be intercepted be to or from the communication device.
Where, as in the case sub judice, communications were neither sent from, nor received by, a communication device within the state, the interception of such communications is patently outside the coverage of § 10-408 and, thus, illegal. As to this, there is, and can be, no ambiguity.
The petitioner notes, and I agree, that § 10-408(c)(2) supports this construction. It reads:
“Except as provided in paragraphs (3) and (4) of this subsection, an ex parte order issued under paragraph (1) of this subsection may authorize the interception of wire, oral, or electronic communications onlywithin the territorial jurisdiction of the court in which the application was filed.”
(Emphasis added). This section establishes an initial limitation on the reach of the ex parte order. “Territorial jurisdiction,” as relevant here, is defined by Black’s Law Dictionary, (9th Ed.2009), as the “[tjerritory over which a government, one of its courts, or one of its subdivisions has jurisdiction.” In the state of Maryland, the “territorial jurisdiction” of a state circuit court is the county in which the court is located, or the city of Baltimore, if that is where the presiding judge is sitting. Md.Code. (1973, 2006 RepLVol., 2011 Supp.) §§ 1-501 & 1-503 of the Cts. & Jud. Proc. Article. Where, therefore, the application for an ex parte order is not made by the Attorney General, the State Prosecutor, or a State’s Attorney, an ex parte order, issued by a circuit court, may authorize the interception of communications within the county or, as relevant, the city over which it has jurisdiction.
When § 10-408(c)(2) is read together with § 10-408(c)(3)’s provision that the ex parte order, if pursuant to an application filed by the Attorney General, the State Prosecutor, or a State’s Attorney, may “authorize the interception of communications received or sent by a communication device anywhere within the State ... regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed,” it becomes clear that the Legislature intended to expand the reach of the ex parte order, in that circumstance, beyond the territorial jurisdiction of a circuit court, but only within the State’s borders.
The majority concludes that § 10-408(c)(3) is ambiguous. There is nothing in the language of § 10-408 to support that interpretation. Indeed, the majority’s conclusion, in that regard, is as “forced,” and “strained,” Kushell,
Even if § 10-408(c)(3) were ambiguous and we were required to consult legislative history for guidance in discerning its meaning and the legislative intent in enacting it, my conclusion would be confirmed. There is sufficient indication in those portions of the legislative history upon which the majority relies, Davis, op. at 221-23,
“This bill permits a State’s Attorney to obtain an ex parte order authorizing the interception of communications sent or received by mobile telephone anywhere in the state regardless of where the mobile telephone is physically located at the time of interception regardless of the territorial jurisdiction of the court that issues the order.”
Furthermore, the stated Background for Senate Bill 153 is to the same effect:
“Under current law, an ex parte order (an order granted at the request and for the benefit of one party only without giving notice to the adverse party or providing the adverse party with an opportunity to contest the order) authorizing the interception of wire, oral, or electronic communications may be issued only for communications within its territorial jurisdiction of the circuit court in which the application is filed. Therefore, to intercept communications on a mobile telephone, a separate order must be obtained from the circuit court in each jurisdiction in which the mobile telephone might be moved.
“This bill removes the need for obtaining multiple ex parte orders by providing for multijurisdictional wiretap orders from mobile telephones.”
(Emphasis added). This Background makes the point even clearer. It demonstrates the reasoning behind the addition of subsection (c)(3), in the process recognizing explicitly that the location of the communication device is critical, for it is that which is the receptacle or transmitter of the communications subject to interception: “to intercept communications on a mobile telephone, a separate order must be obtained from the circuit court in each jurisdiction in which the mobile telephone might be moved.”
As the majority, itself, notes, Senator Murphy, the sponsor of Senate Bill 153, stated, during a hearing on the Bill, that expanding the reach of ex parte orders issued by circuit court judges in those limited circumstances contemplated by subsection (c)(3) would allow law enforcement to better respond to drug trafficking problems by enabling them to “weav[e] in and out of counties and across one jurisdictional boundary after another within the state.” Hearing Before the Judicial Proceedings Committee (30 Jan. 1991) (emphasis added). This is yet another clear indication that the expansion sought by subsection (c)(3) was only intended to enhance law enforcement operations -within the borders of Maryland. Had the Legislature intended Maryland ex parte orders to operate beyond the borders of the State, assuming it has that authority, it certainly should and could have said so. Indeed, as I stated earlier, “the Legislature is presumed to have meant what it said and said what it meant.” Arundel Corp.,
Moreover, I believe the majority’s reliance on Title III, as interpreted by federal courts, to be misplaced. So, too, is its “adoption] [of] ... the federal gloss in determining the proper jurisdiction and scope for an ex parte wiretap order.” Id. at 214,
It is true that the language of the Maryland Wiretap Act, not unexpectedly, closely tracks the language of Title III in a number of provisions; however, the majority overstates and overemphasizes this similarity. The similarities simply are not sufficiently overarching to justify interpreting the state statutory scheme in an identical manner as the federal act. In fact, in addition to “those minor respects in which the Maryland law is more restrictive than its federal counterpart,” Davis,
In deferring to the interpretation, by the federal courts, of the federal statute as instructive, even dispositive, of the interpretation of the comparable Maryland statute, the majority is persuaded by the fact that both statutes define “intercept” in the exact same way. While true, there is a critical difference — the effect and consequence on jurisdiction of intercepting communication from mobile phones — that has significance to this case. Title Ill’s definition of “intercept,” today, includes electronic communication among those that may be acquired using the prescribed communication devices. § 2510(4). At its enactment, it encompassed only communications occurring over landlines; it did not cover electronic communications. Once Title III was amended to account for mobile telephones, Congress recognized the need to — and did — change the jurisdictional effect on ex parte orders involving mobile phones.
The Maryland definition of “intercept” has a similar progression, which the Court of Special Appeals acknowledged and on which it commented:
“Neither the original Title III nor the original Maryland Wiretapping Act ... covered communications between cellular phones. Such expanded coverage would not, indeed, follow until 1986 on the federal side, or until 1988 on the Maryland side. In Bartnicki v. Vopper,532 U.S. 514 , 524,121 S.Ct. 1753 ,149 L.Ed.2d 787 (2001), Justice Stevens described the time and the substance of the enhanced coverage:
‘As enacted in 1968, Title III did not apply to the monitoring of radio transmissions. In the Electronic Communications Privacy Act of 1986, 100 Stat. 1848, however, Congress enlarged the coverage of Title III to prohibit the interruption of “electronic” as well as oral and wire communications. By reason of that amendment, as well as a 1994 amendment which applied to cordless telephone communications, 100 Stat. 4279, Title III now applies to the interception of conversations over both cellular and cordless phones.’
“Maryland followed the federal lead by enacting ch. 607 of the Acts of 1988. To the definitions in § 10-401, which already included “wire communication” and “oral communication,” Maryland, again following Title Ill’s example, added as § 10-401(11) a definition of “electronic communication”:
‘(ll)(i) ‘Electronic communication’ means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system.’
“Whereas § 10-402(a), the operational criminalizing provision, had originally only prohibited the interception of wire and oral communications, it now added, again following Title Ill’s example, “electronic communication” to the protective coverages:
‘(a) Unlawful acts. — Except as otherwise specifically provided in this subtitle it is unlawful for any person to:
(1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication[.]’
“It was necessary to add ‘electronic’ to § 10-402(a) because a cellular communication is neither a ‘wirecommunication’ nor an ‘oral communication’ and, therefore, was not covered by the existing law. Although it did not do so until 1988, § 10-402 now clearly covers communications involving cellular phones. The law, as amended in 1988, therefore covers the present case.”
Davis,
Neither the intermediate appellate court nor the majority addresses the difference between § 2518(3), specifically with regard to the distinction it draws, jurisdictionally, when the communications are obtained from the wiretapping of a mobile phone, and § 10-408(c)(3), which draws no such distinction. This is an important difference. In 1986, along with its inclusion of “electronic communications” in the language of Title III, Congress, in 18 U.S.C. § 2518(3), substituted “wire, oral, or electronic” for “wire or oral” and inserted, “(and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction),” Electronic Communications Privacy Act of 1986, Pub.L. 99-508 (emphasis added). This amendment accomplished two things: first, it created an exception to the general prohibition of § 2518(3), limiting interceptions to “communications within the territorial jurisdiction of the court in which the judge is sitting” by, second, authorizing interception across state lines, but only pursuant to an ex parte order issued by a Federal court, and of communications sent or received by a mobile device. Section 2518(3), thus, authorizes the “aural ... acquisition,” § 2510(4), of an “oral communication” or “wire communication,” only within the territorial jurisdiction of the issuing court, while authorizing “aural ... acquisition” of an “electronic communication” involving a mobile device “within the United States.” It makes sense, given the need to help law enforcement better perform their function, to allow greater latitude, albeit within the limits of the country’s borders, in the case of mobile phones, while creating a jurisdictional anchor for landline communications.
In contrast, the Maryland Legislature, in amending § 10-401(3) and § 10-402 to include “electronic communications,” did not amend § 10-408(c)(3) to draw such a jurisdictional distinction. Consequently, read as the majority does, § 10-408(c)(3) authorizes the interception of any communication— oral, wire and electronic, without geographic limit, occurring anywhere in the United States — or, as the majority opinion suggests, Davis, op. at 230-31,
The Maryland Wiretap statute was required, by Title III, to be at least as protective of individual rights as the federal act. See United States v. Kahn,
Premised on § 2518(3) and the federal cases interpreting it, see supra note 4, the majority believes that its interpretation of § 10-408(c)(3) merely places Maryland on a par with the federal courts and, therefore, Maryland is no less protective of individual rights than are those courts. Davis, op. at 223-24,
It is a long standing principle, dating back to the common law, that a state’s jurisdiction is limited to the confines of its own borders. See St. Louis v. The Ferry Co.,
This is not to say that a state court may not exercise extraterritorial jurisdiction. It may, but, unless, I submit, expressly empowered by federal law, it must be in
By contrast, federal district courts are units of the federal government. While, to be sure, they operate within jurisdictional boundaries, Fed.R.Civ.P. 4, as do state courts, when authorized to act extra-territorially, it is logical that the authority would be defined, and limited by the governmental structure of which it is a part. That explains the extraterritorial feature of § 2518(3). As we have seen, in the case of mobile phones, the court is empowered to authorize interceptions co-extensive with federal jurisdiction, anywhere in the United States. Therefore, it does not follow that a state court acquires the same extra-territorial authority that a federal court does simply because the statutes under which they operate are similar. The governmental structure must be considered. In any case, when, as here, one of the statutes, the federal statute, also has a substantial distinguishing feature, i.e. the differentiation, for jurisdictional purposes, between the sources for the various communications permitted to be intercepted, that surely cannot be the case.
I am not persuaded that there is any, never mind sufficient, basis for the adoption of a “federal gloss” for the interpretation of § 10-408(c)(3). The primary case interpreting Title III, and more particularly, § 2518(3), on which the majority heavily relies, Rodriguez,
As the petitioner notes, and I agree, the majority’s reliance on judiciary interpretations of non-Maryland wiretap statutes, including those passed by other states
Judge GREENE has authorized me to state that he joins in this dissenting opinion.
. Maryland Code (1957, 2006 Repl.Vol., 2011 Supp.) § 10-408(c) of the Cts. & Jud. Proc. Article, provides:
"Grounds for ex parte interception order
"(c)(1) Upon the application the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral, or electronic communications within the territorial jurisdiction permitted under paragraphs (2) and (3) of this subsection, if the judge determines on the basis of the facts submitted by the applicant that:
"(i) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 10-406 of this subtitle;
“(ii) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
"(iii) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
"(iv) There is probable cause for belief:
"1. That the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by this person in accordance with subsection (a)(1) of this section; or
"2. That the actions of the individual whose communications are to be intercepted could have the effect of thwarting an interception from a specified facility in accordance with subsection (a)(2) of this section.
“(2) Except as provided in paragraphs (3) and (4) of this subsection, an ex parte order issued under paragraph (1) of this subsection may authorize the interception of wire, oral, or electronic communications only within the territorial jurisdiction of the court in which the application was filed.
"(3) If an application for an ex parte order is made by the Attorney General, the State Prosecutor, or a State’s Attorney, an order issued under paragraph (1) of this subsection may authorize the interception of communications received or sent by a communication device anywhere within the State so as to permit the interception of the communications regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed at the time of the interception. The application must allege that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed.
"(4) In accordance with this subsection, a judge of competent jurisdiction may authorize continued interception within the State, both within and outside the judge's jurisdiction, if the original interception occurred within the judge's jurisdiction.”
. § 10—408(i) states:
"Motions to suppress by aggrieved persons
"(i)(l) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of this State or a political subdivision thereof, may move to suppress the contents of any intercepted wire, oral, or electronic communication, or evidence derived therefrom, on the grounds that:
"(i) The communication was unlawfully intercepted;
"(ii) The order of authorization under which it was intercepted is insufficient on its face, or was not obtained or issued in strict compliance with this subtitle; or
"(iii) The interception was not made in conformity with the order of authorization.
"(2) This motion shall be made in accordance with the Maryland Rules. If the motion is granted, the contents of the intercepted wire, oral, or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this subtitle. The judge, upon the filing of the motion by the aggrieved person, in his discretion may make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.
“(3) In addition to any other right to appeal, the State shall have the right to appeal from the denial of an application for an order of approval, if the prosecuting attorney shall certify to the judge or other official denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted.”
. Section 10-408(f) of the Maryland Wiretap Act, for example, mandates that an ex parte order "shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for interception,” (emphasis added). The analogous federal provision, 18 U.S.C. § 2518(6), in contrast, simply states that such an order “may require reports to be made to the judge....” (Emphasis added). See also State v. Baldwin,
Also, under 18 U.S.C. § 2511(2)(c), law enforcement may intercept a wire, oral, or electronic communication without a court order, provided prior consent has been granted by a party to the communication. Section 10-402(c)(2), on the other hand, only deems such one-party consent to be sufficient where a law enforcement officer or a person “acting at the prior direction and under the supervision of an investigative or law enforcement officer” seeks to intercept a wire, oral, or electronic communication to acquire evidence of the commission of certain enumerated crimes, including murder, kidnapping, and rape. If the law enforcement officer, or other person acting under color of law, is a party to the conversation, this satisfies the one-party consent requirement. § 10-402(c)(2)(ii). In all other circumstances, however, in the absence of any other exceptions set forth in the statute, it is unlawful for a person to intercept a communication unless “the person is a party to the communication and ... all of the parties have given prior consent to the interception .... ” § 10-402(c)(3) (emphasis added). See also Mustafa,
. United States v. Rodriguez,
. United States v. Tavarez,
. I am not persuaded by the reasoning of United States v. Cosme,
Had the Cosme court held that it was proper to conduct a wiretap in Mexico, that case would be analogous to the majority's holding, Davis, op. at 214-15,