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Tyrone Davis v. State of Maryland, No. 59, September Term, 2011. CRIMINAL LAW - MARYLAND WIRETAP ACT - JURISDICTION - INTERCEPTION OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS - SUPPRESSION OF EVIDENCE - Jurisdiction is proper, under Maryland wiretap law, in Maryland circuit court to issue an ex parte wiretap order when law enforcement officers intercept aurally an otherwise extra-territorial wire, oral, or electronic communication at a "listening post" located within the geographical jurisdiction of the court issuing the order.

Circuit Court for Montgomery County Case No. 114288C

IN THE COURT OF APPEALS OF MARYLAND No. 59 September Term, 2011

TYRONE DAVIS v. STATE OF MARYLAND

Bell, C.J., Harrell Battaglia Greene Adkins Barbera Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.

Opinion by Harrell, J. Bell, C.J., and Greene, J. dissent.

Filed:

May 2, 2012

Montgomery County law enforcement officers, situated at a "listening post" in Montgomery County, Maryland, and operating under an ex parte order issued by a judge of the Circuit Court for Montgomery County properly under the Maryland Wiretapping and Electronic Surveillance Act, intercepted a mobile phone communication from a target mobile phone, caller, and receiver located in Virginia. Section 10-408(c) of the Maryland Code, Courts and Judicial Proceedings Article, permits a Maryland judge to enter an ex parte order authorizing the interception of "wire, oral, or electronic communications . . . sent by a communication device anywhere within the State." As a result of the intercepted

communication, the police seized from Petitioner, Tyrone Davis (the caller), controlled dangerous substances when he returned to his Maryland residence. Petitioner moved in the Circuit Court to suppress all evidence obtained by police through the asserted illegal search and seizure, on the basis that the wiretap order did not authorize interception of the extraterritorial communication and the court issuing the order could not authorize such an interception. The hearing judge denied the motion, citing federal case law defining the location of an "interception" as where the mobile communication was first intercepted or redirected and where it was first heard by law enforcement officers. On appeal, the Court of Special Appeals affirmed the denial of the motion. Although, in a few aspects, Maryland's wiretapping statute is more protective of individual privacy rights than Title III of the Federal Omnibus Crime and Safe Streets Act of 1968 ("Title III"), generally the Maryland statute is an "offspring" of Title III. We have read analogous provisions in our statute to be in pari materia with Title III, as interpreted by federal courts. Because the Title III and Maryland wiretap statute definitions of

"interception" are verbatim, we shall adopt here the federal gloss in determining the proper jurisdiction and scope for an ex parte wiretap order. Thus, as long as the "listening post" where the law enforcement officers first hear the intercepted communications is within the geographical jurisdiction of the court issuing the order, the interception is proper under the Maryland statute. Accordingly, we conclude that the motion to suppress evidence was denied properly by the Circuit Court for Montgomery County and, therefore, affirm the judgment of the Court of Special Appeals. I. Factual and Legal Proceedings The following was gleaned from the record of the suppression hearing. On 8 September 2006, the State's Attorney for Montgomery County filed an ex parte application to intercept and record wire, oral, and electronic communications from Petitioner's mobile cell phone. Petitioner lived in Silver Spring, Montgomery County, Maryland. The application was supported by affidavits from a Montgomery County Police Department Detective and a Special Agent for the United States Drug Enforcement Agency, who were co-ordinating an ongoing investigation into the distribution of controlled dangerous substances within Montgomery County. Petitioner was one of the targets of the

investigation. The affidavits contained evidence, gathered pursuant to wiretaps approved previously, evincing probable cause to believe that Davis was transporting controlled dangerous substances into Maryland from outside the state. On the day the wiretap application pertinent to the present case was filed, Judge Ann Harrington of the Circuit Court issued an order approving the application. The order, on its face, allowed investigators to -2-

intercept Davis's mobile phone communications1 and required T-Mobile (operator of the relevant mobile phone infrastructure) to provide position and caller identification information, without geographic limit. On 11 September 2006, Montgomery County police (stationed at a covert location in Montgomery County) were monitoring the communications on Davis's mobile phone and overheard a call that, based on the officers' training and experience, indicated that Davis was approaching the Washington, D.C., area after a journey to Miami, Florida, and potentially transporting controlled dangerous substances into Maryland. Approximately one hour after the call was intercepted, two officers confronted Davis as he arrived at his residence in Montgomery County. The officers concocted a cover story, which they told Davis, that they believed that he matched the description of a suspect in a recently committed robbery and requested to search Davis, his vehicle, and a suitcase in the trunk of his car. During the search, the officers found over nine pounds of marijuana in the suitcase.2 The officers did not arrest Davis at that time, purportedly to avoid disrupting the ongoing drug investigation. On 22 October 2009, a grand jury indicted Davis for possessing marijuana on 11

The order gave authority to intercept "telephonic communications, short message service text messaging, caller identification information, electronic photographs, electronic video, precise positioning information, and cellular tower location data . . . " associated with the mobile phone number 757-358-15XX. The phone was registered to Petitioner at a Hampton, Virginia, address. It is undisputed that Davis consented to the search of his person and vehicle; however, Davis maintained at the motion hearing that he did not consent to the search of the suitcase, where the drugs were found. Davis did not dispute that the suitcase belonged to him. -32

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September 2006, "in sufficient quantity to indicate reasonably under all circumstance an intent to distribute the controlled substance," in violation of Maryland Code (1957, 2002 Repl. Vol.), Criminal Law Article,

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