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Perry v. State12/10/1999
ally obtained and inadmissible under the Maryland wiretapping statute had it been taped in Maryland, should not be enough to exclude the evidence when it was not taped in Maryland. Therefore, evidence should be admissible if it is lawfully obtained in the state of interception - which it was in the case sub judice.
The evidence at issue was obtained in compliance with California law and no relevant Maryland statute applies extraterritorially to govern the legality of the acquiring of that wiretap evidence. The interception of the conversation was not illegal and, therefore, no police agency anywhere, particularly no Maryland police entity, is profiting from any unlawful conduct. I suggest that admitting the taped conversation in the case sub judice would not compromise the integrity of the courts. The majority's interpretation of the statute in Mustafa simply went too far. In this case, no statute of any jurisdiction was violated.
Individual Privacy
Clearly, an essential purpose behind Maryland's wiretapping statute is the protection of individual privacy.
As the United States District Court for the District of Connecticut has said:
In challenging the Government's surveillance operations, the defendants seek the preservation of their civil liberties and the vindication of their rights in the event of any violation. Within this context, the scope of the defendants' rights, as they might expect to exercise them on a day-to-day basis, is to be found within the realm of [the situs's circuit] jurisprudence. Ordinarily, it would be the courts of that jurisdiction that would protect the defendants' interests and provide a civil remedy for any redressable wrong. . . . defendant, in challenging the legality of any given electronic surveillance activity, would generally expect to look to the laws of the jurisdiction where the surveillance occurred to protect his or her privacy rights . . . . Gerena, 667 F. Supp. at 917; see also Bridges, 83 Haw. at 199, 925 P.2d at 369.
When considering its holding in Trignani, the Pennsylvania Supreme Court took a logical stance in considering the privacy of its individual citizens:
In reaching our decision, we have carefully considered the negative implications of wiretapping and we are aware of its potential encroachment upon our citizens' cherished right to privacy. While the constitutional rights of all citizens must be zealously guarded, we believe that a delicate balance between those rights and effective law enforcement can be maintained. Clearly, our Legislature did not intend that we have an anti-wiretap law to safeguard communications among criminal networks; it was concerned with intrusions on the right of privacy of law-abiding citizens. Trignani, 334 Pa. Super. at 356, 483 A.2d at 867.
It, in my view, could not have been the intention of the Legislature to provide protection to a person whose only tie to Maryland is that he committed the contract murders of Maryland residents (a handicapped child, and that child's mother and nurse).
Two-party consent provides unwarranted protection. Participant taping should be allowed, especially where the tape captures evidence of substantial harm to one of the participants, as in Inciarrano [v. State, 447 So. 2d 386 (Fla. Dist. Ct. App. 1984), rev'd, 473 So. 2d 1272 (Fla. 1985)][ ] and LaSane.[ ] Bast, supra, at 911.
Perry was not a resident of Maryland. His sole purpose for being in state was to commit a contract murder. Surely, it was not the intent of the Legislature to extend the scope of the wiretapping statute to protect the privacy of nonresident contract murderers. The interception in question was
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