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Perry v. State12/10/1999
ive on Horn's computer. This included an address book, personal correspondence and personal notes. There was not one mention of James Perry, his phone number or his address in this information.
"6. Perry's arrest - When Perry was arrested he asked whether anyone else was going to be arrested or indicted that day. When told yes, and when Lawrence Horn from California was identified as the other person, Perry said he had never heard of Horn.
"The efforts by Lawrence Horn and James Perry to leave no trace of contact with each other were substantial. They went to extraordinary lengths to hide their relationship. To suggest that Horn would 'wilfully' record a conversation between himself and Perry defies logical explanation. The only rational explanation for the existence of the 22-second tape is that the conversation was inadvertently recorded. Therefore, the Maryland Wiretap and Surveillance Act would not apply.
"Based on the reasons set forth above, this court finds that Exhibit 312, even if objected to in a timely fashion, would have been admissible during the trial in this case. Accordingly, the motion to suppress is denied."
In this Court Perry did not contend that the finding of inadvertence was clearly erroneous and, in my opinion, the finding of inadvertence is a legitimate inference that the post-conviction court could draw from the evidence. The finding of inadvertence is not, in my view, rendered clearly erroneous, as the majority concludes, by the evidence of how Horn treated telephone conversations with people other than Perry. Indeed, the evidence of Horn's taping of calls from others suggests how it came about that Horn inadvertently intercepted a telephone call from Perry who, inferentially, was never to place a telephone call to Horn's home.
This Court's principal Conclusion is that the controlling provision is § 10-407(c). Section 10-407, in general, addresses the disclosure and use of the contents of intercepted communications. Subsections (a) and (b) deal with the investigatory disclosure and use of intercepted communications by any law enforcement officer "who, by any means authorized [by Subtitle 4], has obtained knowledge of the contents of any wire ... communication." These subsections in general authorize disclosure and use "appropriate to the proper performance" of official duties of the law enforcement officers involved.
Subsection (c) deals with use and disclosure as testimony and in relevant part reads as follows:
"Any person who has received, by any means authorized by this subtitle, any information concerning a wire ... communication ... intercepted in accordance with [Subtitle 4] may disclose the contents of that communication ... while giving testimony ...."
The majority concludes that the 22-second tape was acquired "by means authorized by [Subtitle 4]" because it was seized under a search and seizure warrant, and I agree. I do not agree, however, that an inadvertent, and therefore non-willful interception, is suppressible under the statutory exclusionary rule of § 10-405. It is on this basis that the facts of the instant matter are distinguishable from those in Mustafa v. State, 323 Md. 65, 591 A.2d 481 (1991) where the interception was clearly willful. Nor do I agree that § 10-407(c) authorizes suppression on grounds that are broader than those specified in § 10-405, which may be invoked only when "disclosure of [the intercepted] information would be in violation of [Subtitle 4]."
The majority opinion departs from the rationale in Perry v. State, 344 Md. 204, 686 A.2d 274 (1996) ("Perry I"). On direct appeal, Perry contended that the challenged tape "was inadmissib
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