In this case, we must decide whether the State possesses the authority to file an interlocutory appeal of a trial court's decision to suppress the tape-recording of a conversation where the court based its suppression upon a violation of § 10-411(c) of the Maryland Wiretapping and Electronic Surveillance Act.
On June 12, 1978, the lifeless body of Mark Stephen Schwandtner was discovered in the Gunpowder River near Jones Road in Baltimore County. Exactly seventeen years and nine months later, on March 12, 1996, the Grand Jury for Baltimore County indicted Petitioner, John Derry, along with three co-defendants, on charges of murder, kidnaping and conspiracy to commit murder in connection with Schwandtner's apparent homicide. At the close of a suppression hearing held prior to trial, the Circuit Court for Baltimore County granted Petitioner's motion to exclude evidence of an audio-cassette recording of a February 4, 1996 conversation between himself and a police informant based upon the court's finding that the recording equipment used by the informant was never affixed with a State Police registration number pursuant to § 10-411(c).
During 1995, the Federal Bureau of Investigation was using one Charles Wilhelm as a paid informant in a number of federal criminal investigations. In the course of those investigations, Wilhelm provided the
Sometime before Wilhelm conducted the interceptions, Detective Downes contacted the Baltimore County State's Attorney's Office to ensure compliance with the Maryland wiretap provisions. He was advised that any recording equipment to be used in connection with the investigation should be registered with the Maryland State Police. To this end, he contacted Detective Jack Cover, a member of the Baltimore County Police Department's Intelligence Unit and the officer responsible for completing the registration of the Department's wiretapping and electronic surveillance equipment pursuant to § 10-411. Cover told Downes that he "should get the serial numbers, model numbers off the equipment to be used and give it to him and have him register the equipment, as is his duty, with the State Police."
Although the F.B.I. owned the recording equipment that was to be used to investigate Petitioner's role in the 1978 homicide, it was Wilhelm who retained possession of the individual devices, since he had been using them in connection with his participation in the federal investigations. Some time in mid-January, 1996, the F.B.I. agreed to provide the manufacturers' serial numbers needed to identify and register the individual devices with the Maryland State Police. On January 15, 1996, the F.B.I. informed the Baltimore County Police Department of the serial numbers associated with the electronic recording equipment Wilhelm was using. Detective Downes immediately contacted Detective Cover and asked him to register four pieces of equipment: "a large recorder,... a Panasonic video camera and the ensuing recording device, and ... a small mini-cassette, Panasonic, that Mr. Wilhelm had on his person."
At some point during the ensuing weeks, F.B.I. technicians installed a video camera and VCR recorder, two of the recording devices registered by Detective Cover, in the back of a sub shop owned by Wilhelm in order that he might intercept and record a meeting arranged with Derry for February 3, 1996. According to plan, Wilhelm video-taped that meeting himself, by means of a remote control device that he kept on his person. The following day, Wilhelm tape recorded a second conversation with Derry during a get-together in Wilhelm's home. It was during that conversation, on February 4, 1996, that Petitioner allegedly confessed to his involvement in the 1978 murder.
The trial court granted Petitioner's motion to suppress the February 4, 1996 recording, ruling as follows:
The State filed an interlocutory appeal to the Court of Special Appeals, invoking § 12-302(c)(3) as its authority to do so.
Id. at 356, 705 A.2d at 39-40.
In direct reliance on Battaglia, the Court of Special Appeals rejected Petitioner's claim that the cassette recording of his February 4, 1996 conversation with Wilhelm was suppressed correctly by the trial court based upon the State's failure to comply with the affixation requirement of § 10-411(c). Accordingly, the court reversed the trial court's judgment, ruling that "[u]nder Battaglia, the recording of [Derry]'s conversation is admissible." We granted Derry's petition for certiorari, which presented the following question:
After oral argument before this Court and subsequent to our initial conferencing of the suppression issue upon which we granted certiorari, it became clear that there was a genuine issue as to whether the State is authorized to appeal the suppression of an intercepted communication at an interlocutory stage of the trial proceedings where the suppression was ordered pursuant to the Maryland Wiretapping and Electronic Surveillance Act (hereinafter referred to by its full name, or "the Wiretap Act," "the Maryland Act," or "the Act"). That this issue had not yet been raised or argued during judicial review of the present case was of no weight given that the existence vel non of the State's right of appeal directly involves the subject matter jurisdiction of the Court of Special Appeals in hearing and deciding this case in the first place. As we stated in Stewart v. State, 287 Md. 524, 527-28, 413 A.2d 1337, 1339 (1980), "the lack of [subject matter] jurisdiction may be raised at any time, including initially on appeal." Moreover, the issue of subject matter jurisdiction need not be raised by a party, but may be raised by a court sua sponte. See Duffy v. Conaway, 295 Md. 242, 254-55 n. 8, 455 A.2d 955, 961 n. 8 (1983) (reiterating
If the answer to this question is negative, the Court of Special Appeals lacked jurisdiction over the instant case. The consequences of such would be that our grant of certiorari would be rendered improvident and that we would be compelled to dismiss the present appeal.
With the refocusing of our inquiry upon the threshold issue of appellate subject matter jurisdiction, the case before us essentially boils down to a question of statutory interpretation involving two separate provisions of the Courts and Judicial Proceedings Article, namely § 10-408(i) within the Wiretap Act, and § 12-302(c).
As this Court repeatedly has made clear, the paramount goal of statutory interpretation is to identify and effectuate the legislative intent underlying the statute(s) at issue. See Robinson v. State, 353 Md. 683, 694, 728 A.2d 698, 703 (1999); Blondell v. Baltimore Police, 341 Md. 680, 690, 672 A.2d 639, 644 (1996). The legislative intent of a statute primarily reveals itself, through its very own words. See Harris v. State, 353 Md. 596, 606, 728 A.2d 180, 184 (1999); Marriott Employees v. MVA, 346 Md. 437, 444-45, 697 A.2d 455, 458 (1997). As a rule, we view the words of a statute in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood. See Sacchet v. Blan, 353 Md. 87, 92, 724 A.2d 667, 669 (1999); Whack v. State, 338 Md. 665, 672, 659 A.2d 1347, 1350 (1995). If the words of a statute clearly and unambiguously delineate the legislative intent, ours is an ephemeral enterprise: we need investigate no further but simply apply the statute as it reads. See Marriott Employees, 346 Md. at 445, 697 A.2d at 458. Even so, we do not view the plain language of a statute in a vacuum. As we have often reiterated,
Our construction of the two statutes involved in the present case need not venture far beyond their text. Despite a theoretically arguable ambiguity in one of the statutes, we believe the plain language of each unmistakably manifests its legislative intent.
Both Petitioner and the State acknowledge that although the Wiretap Act expressly allows for the exclusion of evidence, see §§ 10-405 and 10-408(i), it provides no right of appeal of a trial court's decision on a motion to suppress. The only explicit provision for an appeal under the Act states,
§ 10-408(i)(3) (emphasis added). The Act thus lacks any express provision authorizing the State to appeal a trial court's grant of suppression pursuant to §§ 10-408(i)(1) and (2).
Nor could such a right of appeal reasonably be implied in light of certain legislative history leading up to the Wiretap Act's original passage in 1977. At one point during its drafting, § 10-408(i)(3) included the following provision: "[T]he State shall have the right to appeal from an order granting a motion to suppress made under paragraphs (1) and (2) of this subsection, or the denial of an application for an order of approval...." The italicized text, however, was excised entirely from the statute before its enactment. See 1977 Laws of Maryland, Ch. 692, § 3, at 2815. Hence, its explicit language and the unmistakable intention implicit in its legislative history irrefutably indicate that § 10-408(i) of the Wiretap Act in no way enables the State to appeal immediately the suppression of evidence based thereunder.
Unfortunately for the State, it can fare no better under § 12-302(c)(3) which empowers the State to file an interlocutory appeal of a trial court's grant of a motion to suppress evidence, yet only in certain
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The crux of the proper construction of this statute lies in the meaning of the text we have italicized immediately above. Both parties recognize that our analysis depends principally upon whether the phrase "alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights" modifies both "evidence offered by the State" and "property" or, conversely, qualifies only the latter term. It is, of course, predictable that the parties stand on opposite sides of these two possible interpretations.
Petitioner asserts that the plain language of § 12-302(c)(3)(i) unambiguously restricts the State's authority to appeal a trial court's exclusion of evidence to those cases in which, inter alia, the court's exclusion is based upon a "violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights." Id. The State counters that its license to appeal a suppression order is much broader in the criminal cases specified. Seizing upon § 12-302(c)(3)(i)'s employment of the conjunction "or," the State argues that the key phrase regarding state and federal constitutional violations, by virtue of its disjunctive separation from "a decision of a trial court that excludes evidence offered by the State," id., limits only the State's authority to appeal a court's decision that "requires the return of property," id.
We agree with Petitioner. The General Assembly patently intended that the limitation of interlocutory appeals to issues of constitutional magnitude apply to a trial court decision that either "excludes evidence" or "requires the return of property." The disjunction focused upon by the State between these two phrases relates only to their representing the two distinct subject matters of a criminal defendant's pretrial motion(s) whose granting by the court may possibly be appealed by the State on an interlocutory basis. The trial court's exclusion of evidence or requirement that property be returned are conjoined, however, in the respect that the court's finding of a constitutional violation is a necessary precondition to the availability to the State of an interlocutory appeal in the specified criminal cases.
As a purely textual matter, § 12-302(c)(3)(i)'s limitation of interlocutory appeals to decisions of constitutional law could certainly apply exclusively to return of property cases. We can see no sensible reason, however, why the Legislature would have embraced such an intention. Decisions requiring the return of property appear to embody no significant legal distinction from judgments of evidentiary exclusion so as to restrict the availability of interlocutory appeal for the former more so than for the latter. Moreover, it cannot be doubted, first, that the number of criminal prosecutions involving a court-ordered return of property is far lower than those
Reading § 12-302(c)(3), to permit the State to challenge by interlocutory appeal only constitutionally based exclusions of evidence is more consonant with the long-time unavailability of interlocutory appeals that served as precedent to the statute's original passage in 1982. Prior to that year, Maryland law afforded the State no opportunity to pursue an interlocutory appeal in a criminal case. It was against this backdrop that the General Assembly determined to create a right of interlocutory appeal for the State in only a limited number of criminal prosecutions while explicitly restricting this right in other ways. Because, again, evidentiary rulings arise innumerably during litigation between the State and criminal defendants, bestowing upon the prosecution the right to challenge every such ruling, even with the proviso that all other prerequisites within § 12-302(c)(3) must be satisfied, would reflect an expansiveness directly contrary to the Legislature's ostensibly cautionary approach. We therefore believe the more reasonable interpretation of § 12-302(c)(3) is that its limitation to constitutional issues, like all other limitations within the statute, applies to every exercise by the State of its right to interlocutory appeal.
Although we find that the language of § 12-302(c)(3)(i) reveals a legislative intent to deny the State a right of interlocutory appeal of a trial court's exclusion of evidence on non-constitutional grounds, the legislative history brought to this Court's attention by the State only confirms, rather than dispels, the correctness of our determination. The State points out that within the Department of Legislative Reference's bill file on Senate Bill 39, the 1982 legislative proposal to create § 12-302(c)(3), see 1982 Laws of Maryland, Ch. 493, there appears a summary explaining the effect of the proposed amendment as follows:
The State offers an alternative rationale for maintaining its right to an interlocutory appeal of the Circuit Court's grant of suppression. It contends that if, as we hold, § 12-302(c)(3)(i) requires in part that a trial court's exclusion of evidence be based on state or federal constitutional grounds in order for the State's right to file an interlocutory appeal to vest, a suppression based upon the Wiretap Act suffices for such purposes because of its "constitutional underpinnings." Specifically, the State argues,
Supplemental Brief of Respondent at 8-9 (citations omitted).
We reject this argument. It is true that specific provisions of the Wiretap Act purposely contain minimum protections of the constitutional rights to privacy of Maryland citizens. This Court has itself made such an observation on earlier occasions. See, e.g., State v. Bailey, 289 Md. 143, 153-54, 422 A.2d 1021, 1027 (1980). Yet we have likewise explained that a good many of the provisions in the Act were intended to safeguard the privacy of certain communications in this State in ways more substantial than ensured by the United States and Maryland Constitutions or by the federal statutory precursor to the Wiretap Act, namely Title III of the Omnibus Crime Control and Safe Streets Act, which was passed in 1968, see Pub.L. No.90-351, tit. III, §§ 801-04, 82 Stat. 197, and codified at that time as 18 U.S.C. §§ 2510-2520 (hereinafter "Title III"). See Mustafa v. State, 323 MD. 65, 69, 591 A.2d 481, 483 (1991); Wood v. State, 290 Md. 579, 583, 431 A.2d 93, 95 (1981); State v. Baldwin, 289 Md. 635, 641, 426 A.2d 916, 920 (1981). See also Richard P. Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland's New Wiretap and Electronic Surveillance Law, 8 U. BALT. L.REV. 183, 220-21 (1979) (stating that the Wiretap Act "as written guarantees to the people of Maryland, insofar as the state, itself, is concerned, greater protection from surreptitious eavesdropping and wiretapping than that afforded the people by the Congress.").
It may be the case that § 10-411, the provision of the Wiretap Act originally in question in the present case, was also designed to further the goals of protecting individual persons' privacy interests. However true that may be, § 10-411, as the State concedes, was not itself designed to ensure constitutional rights to privacy. The Wiretap Act's inclusion of provisions furthering interests and rights not constitutionally required undermines the State's alternative argument in this case. Because the Act does not merely codify constitutional requirements in the area of communications privacy, violations of certain of its provisions, like § 10-411, constitute statutory transgressions and nothing more. As we have already determined, a suppression decision pendent upon a violation of statutory law alone cannot trigger the State's right to interlocutory appeal under § 12-302(c)(3).
Furthermore, as discussed earlier, prior to enacting the Wiretap Act in 1977, the
In light of our decision that, as a matter of procedure, the State did not have the right to file an interlocutory appeal of the grant of suppression in this case, there technically is no substantive matter before this Court. We nevertheless are compelled to address a critical threshold issue underlying the State's original appeal. Although not decided by the trial court nor argued by either party during each's respective appeal, this issue warrants our attention given the absence heretofore of any ruling by this Court concerning § 10-411
We note for guidance in future cases involving evidence of a communication obtained through wiretapping or electronic surveillance that the applicability of § 10-411 to the particular equipment used to intercept and record that communication is an important threshold inquiry for Maryland trial courts to consider in deciding a motion to suppress filed pursuant to the Wiretap Act. For instance, in the present case, it is questionable whether the Panasonic micro-cassette recorder, model number Rn 36, used by Wilhelm to intercept and record Petitioner's inculpatory statements, is the type of device that must be registered under § 10-411. It may in fact fall outside the class of devices circumscribed by the Legislature in initially passing the Wiretapping and Electronic Surveillance Act of 1977. In other words, the device used by Wilhelm may not be an item whose design renders it primarily useful for surreptitious interception. If so, the State never had any duties under
Petitioner asserts that "there can be no misinterpretation of the legislative intent of the requirement of the registration of every device obtained to intercept and record wire, oral, and electronic communications." (Emphasis added.) Petitioner's position is grounded on the same general misconception expressed in Battaglia that all devices capable of intercepting or recording wire, oral, or electronic communications are circumscribed by Maryland's wiretap and electronic surveillance law. Under such a regime, law enforcement agencies and officials in Maryland could not even possess, let alone use in their investigations, any intercepting or recording device without registering it with the State Police within ten days of coming into its possession. See § 10-403(b)(4) (requiring police authorities to register all covered recording devices with the State Police in accordance with § 10-411 in order to render their mere possession of such devices lawful under the statute). Were such the law, untold numbers of clerks, secretaries, and officers in police departments throughout this State would be forbidden to keep at their desks run-of-the-mill stereo/tape recorders unless they register them. Such results could hardly have been the intent of the General Assembly in passing the Wiretapping and Electronic Surveillance Act of 1977.
As noted earlier, Maryland's Wiretap Act was closely modeled on Title III of the Omnibus Crime Control and Safe Streets Act, passed by the United States Congress in 1968.
The federal Courts of Appeal that have been called upon to construe the meaning of the phrase "primarily useful for ... surreptitious interception" have made clear that its language contemplates a fairly narrow range of intercepting and recording devices. For example, in United-States v. Shriver, 989 F.2d 898 (7th Cir. 1992), in considering Title III's application to modified or "cloned" satellite television descramblers, the Seventh Circuit explained that
Id. at 905.
We also draw attention to a particularly insightful passage from the Fifth Circuit's decision in United States v. Schweihs, 569 F.2d 965 (5th Cir.1978), where the unanimous three-judge panel reasoned:
Id. at 968 (alterations in original) (footnote omitted).
Because some of the language in the opinion of the Court of Special Appeals in
Based on all the considerations discussed in Part II above, we hold that the State lacked authority under § 12-302(c)(3) to file an interlocutory appeal of the Circuit Court's decision to suppress Petitioner's conversation with confidential police informant Charles Wilhelm on account of the court's determination that the State failed to comply with a purely statutory requirement within § 10-411(c). Because the State possessed no other authority under the law of Maryland to file an interlocutory appeal in the present case, the Court of Special Appeals should have dismissed the appeal.
BELL, C.J., concurs in part.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE STATE'S APPEAL. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE COUNTY.
BELL, C.J., joins in Parts I, II and IV of the opinion and concurs in the judgment of the Court.
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(ii) The appeal shall be made before jeopardy attaches to the defendant. However, in all cases the appeal shall be taken no more than 15 days after the decision has been rendered and shall be diligently prosecuted.
(iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.
(iv) If the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. In that case, the State may not prosecute the defendant on those specific charges or on any other related charges arising out of the same incident.
(v) Pending the prosecution and determination of an appeal taken under paragraph (1) or (3) of this subsection, the defendant shall be released on personal recognizance bail. If the defendant fails to appear as required by the terms of the recognizance bail, the trial court shall subject the defendant to the penalties provided in Article 27, § 12B.
(vi) If the State loses the appeal, the jurisdiction shall pay all the costs related to the appeal, including reasonable attorney fees incurred by the defendant as a result of the appeal.
(i) Suppression of contents of communication; appeal from denial of application for order of approval.—(1) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of this State or a political subdivision thereof, may move to suppress the contents of any intercepted wire, oral, or electronic communication, or evidence derived therefrom, on the grounds that:
(i) The communication was unlawfully intercepted;
(ii) The order of authorization under which it was intercepted is insufficient on its face, or was not obtained or issued in strict compliance with this subtitle; or
(iii) The interception was not made in conformity with the order of authorization.
(2) This motion may be made before or during the trial, hearing, or proceeding. If the motion is granted, the contents of the intercepted wire, oral, or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this subtitle.
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Id. at 438-40, 83 S.Ct. at 1387-89 (footnote omitted).
with 18 U.S.C. § 2512(1)(b), which subjects to fine and imprisonment any person who, unless expressly excepted, intentionally