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Perry v. State12/10/1999
of the purposes of the conspiracy."
Apparently treating this as an application of the co-conspirator exception to the hearsay rule (see Md. Rule 5-803(a)(1)), Perry responds that the co-conspirator exception applies only to communications "in furtherance of the conspiracy" and asserts that the conversation captured on the tape does not fall into that category. He urges (1) that if the message recorded on the tape is not the conversation that occurred at 5:12 on the morning the murders was committed, it establishes no more than that the parties had contact and is therefore not a communication in furtherance of the conspiracy, and (2) that if the recording was of the conversation that morning, it occurred after the murders had been committed, by which time the objective of the conspiracy had been accomplished and the conspiracy had ended. The State takes issue with both assertions but contends that the court was not applying the hearsay exception in any event. Rather, it treats the court's ruling as one of statutory construction - that because Perry waived or relinquished his expectation of privacy, the exclusionary rule of the statute does not apply.
We agree that the issue is one of statutory construction and does not involve the hearsay exception articulated in Md. Rule 5-803(a)(1). We disagree, however, that there is any co-conspirator exception embodied or implicit in the Maryland wiretap law.
Underhill arose out of an illegal gambling operation conducted in Tennessee. Two members of the operation, Rokitka and Underhill, routinely taped telephone conversations with other members who were calling in bets, for the purpose of making a record in the event that any dispute later arose about the terms of the betting transaction. The F.B.I. seized the tapes during a search of Rokitka's apartment, and the issue arose of whether those tapes were admissible at the trial of the conspirators. The question hinged on the scope and application of the Federal wiretap law, 18 U.S.C. § 2510, et seq. Section 2515 provided that no part of the contents of a wire or oral communication that has been intercepted may be received in evidence if the disclosure of that information would be in violation of the Act. That section, the court said, was not self-executing, but depended on § 2518(10)(a)(i), which permitted an "aggrieved person," defined as a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed, to move to suppress the contents of an intercepted communication on the ground that the interception was unlawful. The issues were (1) whether the interceptions were unlawful, and (2) if so, whether the defendants were aggrieved persons entitled to suppression.
There were two classes of defendants - Underhill and Rokitka, who had made the recordings, and Person, a caller whose conversations were taped without his consent. Because the recordings were made by private individuals not acting under color of law, the lawfulness issue was governed by § 2511(2)(d). That section stated that it was not unlawful for such a person to intercept a wire or oral communication when that person is a party to the communication or when one of the parties to the communication had given prior consent to the interception, unless the communication was intercepted for the purpose of committing a criminal , tortious, or other injurious act. Because the making of a gambling record violated a Tennessee statute, the taping of the conversations for the purpose of making such records was, itself, unlawful. The question, then, was whether the defendants had a basis for relief.
Underhill and Rokitka, as noted, had made the recordings, and the co
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