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Perry v. State12/10/1999
vidence.
Perry has a different view. He contends that the requirement of willfulness pertains only to civil or criminal actions filed against the interceptor of the communication (or one who uses or discloses the contents of the communication knowing that it was unlawfully intercepted). Willfulness, he urges, is not required for purposes of the exclusionary rule. He cites no authority for that proposition, and we can find no cases either supporting or negating it, but a fair reading of the statute convinces us that Perry's interpretation is correct.
The statute, unfortunately, is a bit convoluted, requiring consideration of the interplay between several different sections. The confusion that generates the issue results from some sections using the term "lawful" or "unlawful," while others speak of whether the interception was "in accordance with" the subtitle.
The requirement of willfulness appears only in § 10-402(a), which makes it unlawful for a person to: (1) willfully intercept, endeavor to intercept, or procure another to intercept or endeavor to intercept a wire communication; (2) willfully disclose or endeavor to disclose 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 the subtitle; or (3) willfully use or endeavor to use 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 the subtitle. Section 10-402(b) makes it a felony to violate subsection (a). Unquestionably, to obtain a conviction for the violation of § 10-402(a), the State would have to prove that the defendant acted willfully.
Section 10-410(a) creates for the benefit of any person whose wire communication was intercepted, disclosed, or used in violation of the subtitle a civil cause of action against the person who intercepted, disclosed, or used the communication. Although § 10-410(a) does not refer directly to § 10-402(a), as does § 10-402(b), the reference is implicit from the fact that liability rests solely on the interception, disclosure, or use of an intercepted communication - the three acts specified as unlawful in § 10-402(a). The prevailing view, in the Federal courts and in the Court of Special Appeals, is that the same mental state required for a criminal conviction under § 10-402 is also required as a condition to civil liability under § 10-410. See Citron v. Citron, 722 F.2d 14 (2d Cir. 1983), cert. denied, 466 U.S. 973, 104 S. Ct. 2350, 80 L. Ed. 2d 823 (1984); Malouche v. JH Management Co., 839 F.2d 1024 (4th Cir. 1988); Hawes v. Carberry, 103 Md. App. 214, 653 A.2d 479 (1995); Fearnow v. Chesapeake Telephone, 104 Md. App. 1, 655 A.2d 1 (1995). The apparent basis for that approach is that the civil liability under § 10-410 and its Federal counterpart, § 2520, attaches only to violations of § 10-402(a), or its Federal counterpart, § 2511.
Unlike §§ 10-402(b) and 10-410(a), which, directly or by clear inference, tie criminality and civil liability to a violation of § 10-402(a), § 10-407(c) permits testimonial disclosure only if the communication was intercepted "in accordance with the provisions of this subtitle." The interception by Horn, clearly, would not have been in accordance with the provisions of the subtitle if it was done without Perry's consent.
This construction of §§ 10-405 and 10-407 raises the prospect of a non-willful interception, without the consent of all parties, being neither lawful under § 10-402(c) nor unlawful under § 10-402(a), which would appear to be an anomaly. When analyzed from the point of view o
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