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Perry v. State12/10/1999
urt did not believe that it was the intent of Congress "to shield the very people who committed the unlawful interceptions from the consequences of their wrongdoing," Underhill, 813 F.2d at 112. The purpose of the law, the court declared, was to provide "protection to the victims of unlawful interceptions, not to the perpetrators." Id. On that premise, the court held that Underhill and Rokitka had "waived their right of privacy in these communications by their deliberate act of causing them to be recorded." Id. To construe the law otherwise would produce an absurd result that could not have been intended by Congress.
Person, however, argued that he neither made nor consented to the interception and that he was entitled to suppression of the tapes. Citing Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S. Ct. 1180, 1183-84, 90 L. Ed. 1489 (1946) and United States v. Bowers, 739 F.2d 1050, 1052 (6th Cir. 1984), cert. denied sub nom. Oakes v. United States, 469 U.S. 861, 105 S. Ct. 195, 83 L. Ed. 2d 128 (1984), the court extended the basis it had used for denying relief to Underhill and Rokitka to Person as well and held that " s a member of the conspiracy Person was bound by the acts of his co-conspirators and may be held to have waived his right of privacy in communications made in furtherance of the purposes of the conspiracy." Underhill, 813 F.2d at 112.
It stated:
"Each party to a conversation takes the risk that the other party will record and divulge the contents of that conversation. Smith v. Cincinnati Post & Times Star, 475 F.2d 740 (6th Cir. 1973); United States v. Felton, 753 F.2d 256, 259 (3rd Cir. 1985). In enacting § 2511(2)(d), Congress sought to protect parties from this risk by making otherwise legal interceptions unlawful if the purpose of the interception was an act enumerated in the statute. In doing so, it did not intend to deprive prosecutors of the most cogent evidence of wrongdoing because the defendants record evidence of their crimes by intercepting communications with their confederates." Id.
The rationale applied in Underhill was confirmed by the Sixth Circuit Court of Appeals in Traficant v. C.I.R., 884 F.2d 258 (6th Cir. 1989). See also United States v. Bragan, 499 F.2d 1376 (4th Cir. 1974); United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995) and United States v. Nietupski, 731 F. Supp. 881 (C.D. Ill. 1990). Compare, however, In Re Grand Jury, 111 F.3d 1066 (3d Cir. 1997).
The State's and the post-conviction court's reliance on Underhill is misplaced, not because we necessarily disagree with the Sixth Circuit court's interpretation of the Federal wiretap law, although the consistency of that interpretation with some of the pronouncements in Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972), appears to be a bit strained, but because, at least with respect to its holding concerning the defendant Person, it has no application to, and indeed is incompatible with, the Maryland wiretap law. The critical distinction is highlighted by the Underhill court's statement that " ach party to a conversation takes the risk that the other party will record and divulge the contents of that conversation." As the cases cited in Underhill illustrate, that statement emanates from the fact that, under § 2511(2)(d) of the Federal wiretap law, it is not unlawful for one party to a telephone conversation to tape and divulge the contents of the conversation, even without the knowledge or consent of the other party to the conversation, unless the taping is for an unlawful purpose. The thrust of the Federal Act is that any conversation may be recorded by a private individual unless the recording is for an unlawful pur
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