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Perry v. State12/10/1999
done or made in furtherance of the conspiracy, there is no basis for concluding that an otherwise aggrieved person - in this instance one whose conversation is taped without his consent - loses his right to suppress the tape merely because the taping is done by a co-conspirator. See State v. Maddox, 69 Md. App. 296, 300-01, 517 A.2d 370, 372 (1986).
It is interesting to note that, 40 years ago, we declined to follow a Supreme Court decision, Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957), that allowed the admission of unconsented-to eavesdrop evidence under the more liberal Federal wiretap law then in existence. See Robert v. State, 220 Md. 159, 151 A.2d 737 (1958) (holding inadmissible under Maryland law the testimony of police officers who listened on an extension telephone to a conversation between the defendant and his daughter without the defendant's knowledge or consent). We declared in that case that " he terms of our statute as to obtaining the contents of a telephonic communication and as to the consent of all participants are so different from the language of the Federal Act that we think that the Rathbun case is inapplicable." Id. at 171, 151 A.2d at 743. That remains the case today. We therefore hold that the post-conviction court erred in finding the exhibits and testimony admissible under some implied co-conspirator exception.
(2) Willfulness
CJ § 10-405 provides that, whenever a wire communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence "if the disclosure of that information would be in violation of this subtitle." To determine whether the disclosure of an intercepted communication is in violation of the subtitle, it is necessary to look at § 10-402(a)(2) and § 10-407. The former makes it unlawful for any person to "wilfully disclose" to any other person the contents of a wire communication "knowing or having reason to know that the information was obtained through the interception of a wire . . . communication in violation of this subtitle." Section 10-407(c), however, provides, in relevant part, that any person who has received, "by any means authorized by this subtitle," any information concerning a wire communication "intercepted in accordance with the provisions of this subtitle," may disclose the contents of that communication, or the derivative evidence, while giving testimony in court under oath or affirmation.
Under § 10-407(c), Detective Wittenberger was entitled to disclose the tape - to produce, identify, and testify about it - only if he had received the tape by a "means authorized by this subtitle" and the interception was "in accordance with the provisions of this subtitle." There is no doubt that Wittenberger received the tape by an authorized means; he acquired it through execution of a search warrant, the validity of which is not in dispute. The question, then, is whether the interception by Horn was "in accordance with the provisions of the subtitle."
In this regard, the State looks to § 10-402(a), which makes it unlawful for a person to "wilfully" intercept a wire communication. It maintains, and persuaded the post-conviction court to accept, that a communication that was not intercepted "wilfully" was not intercepted unlawfully, and thus in violation of the subtitle. It urges that unless Horn taped the conversation "wilfully," there was no impediment to the disclosure of the tape or to the admission of evidence regarding it. As the court found, as a fact, that Horn made the tape "inadvertently," and therefore not "wilfully," the State maintains that there was no error in the admission of the challenged e
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