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Perry v. State12/10/1999
believe that it was the intention of the Legislature to regulate the recordings of such messages when the recording is done in this State, not elsewhere in the universe.
Moreover, what wrong does this type of extraterritorial application of the exclusionary rule address? In a case such as this, no agent of this State has done anything wrong. If the exclusion of the evidence is designed to "punish" the State, for what is the State being punished? It has not done anything wrong. Is the purpose to teach a lesson to the police and residents of California? We should have no interest in California's treatment of such recordings. Moreover, their actions were legal. In this case, Horn is not the opposing party that sought the admission of the recording. Obviously, we are not punishing him. What purpose does the extension of Mustafa serve? To whom are we teaching a lesson? Certainly not Horn. Certainly not California. Certainly not the police involved in the case.
The answer to all of these questions apparently is Mustafa. I believe in the importance of precedent and stare decisis; but, where adherence to the holdings of prior cases leads to the reversal of the convictions of a Michigan contract killer who has murdered three Maryland residents, including the California co-conspirator's own disabled child, because the co-conspirator legally recorded a telephone message in California, the price of the precedent is too great for my adherence. Mustafa should be overruled.
If not overruled, it should be distinguished. While the Maryland police officer supervising the paid informant in Mustafa asserted that he did not know that the informant was taping the calls in the District of Columbia where it was legal to do so, the informant was, nonetheless, actively participating as an agent of the officers in attempting to have a drug transaction take place in Maryland. The State had agreed to pay $2,500 to the informant if the informant would set up the drug buy. The informant enticed Mustafa's co-defendant, Andarge Asfaw, into helping set up a drug transaction. The attempts to set up the transaction took place by phone between the informant's Washington residence and Prince George's County. The informant taped the calls, which was legal in the District.
The person taping the calls in Mustafa was acting at the general direction of the Maryland officers. At least to some significant extent, the informant, in respect to the specific investigation, was acting as an agent of the police, although the informant was not within the physical jurisdiction of this State. Mustafa, therefore, involved extraterritorial Maryland police action, in direct support of a Maryland police investigation. At least an argument could be made in Mustafa that a Maryland police officer was being penalized, being taught to keep better control over his paid informant. In the case sub judice, the recording was not made as a part of a police investigation. It was made, not by an informant, but, by a co-conspirator to murder, and the recording itself did not result from the payment of Maryland funds and was legally made in California. Assuming that the purpose of the act is to deter surreptitious recordings, who is being deterred by the exclusion of this evidence? Not the police. Not Horn. Not Perry. He is getting away with murder.
I understand the majority's adherence, under the doctrine of stare decisis, to Mustafa's extraterritorial extension of the Maryland statute's application. As I perceive it, however, it is an example of bad cases making bad law. Now, if co-conspirators record their conversations, unknown to each other and to the authorities, no part of those conversations, if discovered, will be admi
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