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Perry v. State12/10/1999
le under the legislatively created exclusionary rule" of § 10-405. Id. at 221, 686 A.2d at 282. To support suppression Perry relied on § 10-402(a). Id. at 224, 686 A.2d at 284. This Court concluded that the suppression issue was not before it on direct appeal, but could be raised on post conviction. Id. at 228, 686 A.2d at 285. In discussing the issues to be developed on post-conviction this Court said that "the inadequacy of the record [in Perry I] includes the lack of fact-findings bearing on whether there was a violation and whether it was willful." Id. at 227, 686 A.2d at 285. This Court thereby recognized that the analysis proceeded from § 10-405 to § 10-402(a)(2) and ultimately to § 10-402(a)(1). As this Court asked the post-conviction court to do, the fact-findings have been made under the analysis in Perry I. The result is that the tape is admissible.
The majority adopts an analysis different from that in Perry I. Because Perry did not consent to the interception, the majority holds that the communication was not "intercepted in accordance with the provisions of this subtitle," as that quoted language is used in § 10-407(c) and that the result is exclusion. Essentially the majority creates a limbo between the heaven of interceptions "authorized by" or "in accordance with" Subtitle 4 and the hell of conduct "in violation of" Subtitle 4. In this limbo the majority says there dwell communications that are not intercepted in violation of Subtitle 4, because they are not willful and not subject to criminal penalty or civil liability, but are nevertheless subject to suppression because they were not "intercepted in accordance with the provisions of [Subtitle 4]." In my reading of the statute, there is but one concept bearing on admissibility, and that single concept is expressed either approvingly or disapprovingly, depending on whether the intercepted communication may or may not be used as evidence. When the communication may not be used as evidence the statute speaks disapprovingly of the "violation" of Subtitle 4. See § 10-405. When the communication is not in violation of Subtitle 4 and may be used as evidence, the statute speaks approvingly of the intercept and use of the communication as having been acquired by "means authorized by" or "in accordance with" Subtitle 4. See § 10-407(c). Insofar as admissibility is concerned there are, in my view, only two classes of interceptions under Subtitle 4: those that are in violation and those that are not in violation.
Supporting this Conclusion is § 10-407(d) where the words relied upon by the majority, i.e. "in accordance with the provisions of [Subtitle 4]" are used.
Subsection (d) reads:
"An otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this subtitle, does not lose its privileged character."
In subsection (d) the phrase "in accordance with" is used in contradistinction to the phrase, "in violation of," and the combination of the two phrases clearly is intended to encompass the entire spectrum of intercepted communications. The person who enjoys the privilege does not lose it simply by virtue of an interception, of any kind, of that person's communication.
The federal counterpart to § 10-407(d) is 18 U.S.C. § 2517(4) ("No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character."). The federal act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1994) was one of the subjects of Senate Report No. 1097, 90th Cong., reprinted in, 1968 U.S.C.C.A.N.
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