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Perry v. State12/10/1999
f public policy, however, it is not an anomaly. The Legislature has made unmistakably clear that, except as otherwise specifically provided in the subtitle, wire communications are not to be intercepted without the consent of all parties. As noted, that has been part of our law for more than 40 years and represents a fundamental substantive statement of public policy.
The exclusionary provision in § 10-405 and the criminal and civil liability provided for in §§ 10-402(b) and 10-410(a) are alternative sanctions designed to protect and enforce the substantive provision. Except for those relatively few and ordinarily minor offenses that are regarded as malum prohibitum, some form of mens rea is almost always required for criminal and civil liability, even if, for civil liability, the degree of required mens rea may be only simple negligence; conditioning such liability on a finding of willfulness is therefore entirely consistent with our general jurisprudential construct. That is much less the case with respect to an exclusionary rule remedy, however. The exclusionary provision operates only upon the communication itself, depriving it of evidentiary value, rather than against the person or property of the interceptor.
It would not be at all unreasonable for the Legislature to have desired to give that remedy the broader sweep - to make a communication intercepted without consent and not otherwise authorized inadmissible in evidence, without regard to the mental state of the person who made the interception, even if, for purposes of establishing civil or criminal liability, it required willfulness on the part of the interceptor. For one thing, there may be circumstances under which the person who unlawfully intercepted the communication is not subject to criminal or civil prosecution in Maryland, and the only issue is whether a Maryland court should, in effect, bless the unlawful conduct by permitting the communication to be admitted into evidence. From the point of view of the person whose conversation was intercepted without his or her consent and is later sought to be used in evidence, the interceptor's mental state at the time of the interception is of marginal relevance. Whether the interception was done willfully or non-willfully, the violation of the person's right to privacy was the same.
Accordingly, subject to the caveat noted above -our decision not to address in this case whether the exclusionary rule would apply when the communication is offered against the interceptor himself/herself - we hold that a communication intercepted without the consent of all parties to the conversation, unless the interception was otherwise specifically authorized under the subtitle, is inadmissible in evidence.
Judge Rodowsky disagrees with our construction of § 10-405 and would hold that (1) willfulness is required as a condition of exclusion, and (2) in this case, the interception was not willful.
The post-conviction court concluded, from the elaborate attempt by Horn and Perry to conceal their connection and from the fact that, of all of the recordings discovered in Horn's apartment, only this 22-second snippet existed, that Horn's recording of this one conversation must have been inadvertent. If that is so, the recording would not have been "willful," however that term may reasonably be defined. Because of our Conclusion that willfulness is not required as a condition of exclusion, it is unnecessary for us to consider whether the recording by Horn was willful or inadvertent. Were we called upon to review the lower court's finding, however, we would hold that, on the record in this case, it was clearly erroneous.
The finding of inadvertence is a findi
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