WILLIAM D. QUARLES, JR., District Judge.
Defendant Taurus Wiggins was indicted for conspiracy to distribute heroin in violation
In 2008, Baltimore Police and the Bureau of Alcohol, Tobacco, Firearms, and Explosives began an investigation of drug trafficking by the Pasadena Denver Lanes ("PDL") set of the Bloods gang. See Mot. to Suppress 1; Ex. A. From November 2008 to January 2009, the Circuit Court for Baltimore City authorized wiretaps of the telephones of PDL members and associates. See id., Exs. A-I. Wiggins was targeted and/or recorded pursuant to wiretap orders for the "B," "G," and "J" lines. Id. The applicant for these orders was Baltimore City State's Attorney Patricia C. Jessamy. Id. Each application contains Jessamy's signature or stamp; was "[s]ubscribed to and sworn before [a Circuit Judge] after the administration of [an] oath in the manner provided by law"; and contains the signature of the authorizing judge. Id.
Jessamy did not personally appear before the authorizing judge for all the applications. For at least two of the orders Wiggins challenges,
Wiggins has moved to suppress the wiretaps on the ground that this procedure violated the oath requirement of the Maryland Wiretapping and Electronic Surveillance
Federal law governs the admissibility of evidence in federal criminal cases. See, e.g., United States v. Glasco, 917 F.2d 797, 799 (4th Cir.1990). The Federal Wiretap Act contains a narrow exception to this general rule: under 18 U.S.C. § 2516(2),
18 U.S.C. § 2516(2) (emphasis added). Under this provision, "when a state court authorizes a wiretap ... state wiretapping law should govern the admissibility of the wiretap evidence in federal court." United States v. Bullock, 2000 WL 84449, at *4 (4th Cir. Jan. 27, 2000); see also Glasco, 917 F.2d at 799.
Maryland law requires strict compliance with all "pre-conditions" for obtaining a wiretap order. See, e.g., State v. Mazzone, 336 Md. 379, 648 A.2d 978, 979-80 (Md.1994).
As Wiggins acknowledges, the plain language of the Maryland Wiretap Act does not require the applicant to appear before the issuing judge or to submit a written statement that the application is signed under penalty of perjury. The statute merely requires that the application be made "upon oath or affirmation."
Wiggins argues that under Maryland law, the requirement that a document be submitted "upon oath or affirmation" means that the document must comply with Maryland Rule of Procedure 1-304, which prescribes the form an affidavit must take to be admissible in a Maryland court. Rule 1-304 requires an "affiant" to be sworn "before" an officer authorized to
Assuming that Rule 1-304 applies and was not followed, suppression is not required. Section 2516(2)'s requirement that a wiretap application comply "with the applicable State statute" is narrowly drawn. 18 U.S.C. § 2516(2).
Nothing in the text of the Maryland Wiretap Act or the decisions interpreting it requires strict compliance with Rule 1-304. Section 10-408(a) of the Maryland Wiretap Act—which states the requirements for the application—lists the "preconditions" for the issuance of the order, and neither Rule 1-304's requirements nor those of any other Maryland Rule of Procedure are among them.
Wiggins notes that telephonic authorizations for search warrants are not permitted under Maryland law and cites Valdez v. State, 300 Md. 160, 476 A.2d 1162, 1166
Wiggins cites several early twentieth century cases from other states holding that telephonic oaths are impermissible. See, e.g., In re Napolis, 169 A.D. 469, 155 N.Y.S. 416 (1915).
United States v. Turner, 558 F.2d 46, 50 (2d Cir.1977). Wiggins responds to this reasoning with a dissenting opinion from the Alaska Court of Appeals.
Jessamy's presence was not required, only her promise that the matters in the application were submitted under penalty of perjury. It is undisputed that she made such a promise for each of the applications. That the promise was made over the telephone did not render it ineffective; Jessamy swore or affirmed under penalty of perjury that the applications were true, and assumed the risk of prosecution for perjury if they were not. The purpose of an oath is to impress upon the applicant a sense of the solemnity of her promise and to ensure her accountability by imposing a sanction for false statements. These purposes
In essence, Wiggins argues that the wiretaps should be suppressed because the applications did not comply with Rule 1-304. The Maryland Wiretap Act—not Rule 1-304—governs the admissibility of the wiretap evidence here. Because the wiretap applications were submitted in writing, "upon oath or affirmation," to a judge of competent jurisdiction, they met the requirements of the Maryland Wiretap Act. Accordingly, Wiggins's motion to suppress on this basis will be denied.
Under § 10-408(f) of the Maryland Wiretap Act, a wiretap order "shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception." Md.Code Ann., Cts. & Jud. Proc. § 10-408(f). "The reports shall be made at the interval the judge requires." Id. "[S]trict compliance with [this section] is mandated." Baldwin v. State, 45 Md.App. 378, 413 A.2d 246, 256 (Md.Ct.Spec.App.1980).
Wiggins claims that the Government has not shown strict compliance with § 10-408(f) because it has not provided reports "B-4" and "B-5" (covering the period from November 30, 2008 to December 23, 2008) and "B-8" (December 28, 2008 to January 4, 2009).
Wiggins also argues that the reports for the "G-Line" were not "made at the interval the judge require[d]." § 10-408(f). He notes that the G-Line order required the first report to be made on December 30, 2008 and every seven days thereafter. Mot. to Suppress, Ex. H. But the G-Line reports were signed by the issuing judge on December 31, 2008 and January 7, 14, and 22, 2009. Id., Ex. O. Thus, assuming the reports were signed by the judge on the day they were made, they were consistently late by a day or two. As Assistant State's Attorney Pipkin explained in her affidavit, the meetings at which the reports were made were often rescheduled by the presiding judge to accommodate the court's schedule. Pipkin Aff. ¶ 7. All changes to the schedule were approved by the presiding judge. Id. This is permissible under § 10-408(f), which states that the "reports shall be made at the intervals the judge requires." § 10-408(f), Wiggins cites no authority to the contrary.
Because Wiggins has not shown a basis for suppression under Maryland wiretapping law, his motions to suppress and for reconsideration will be denied.
For the reasons stated above, Wiggins's motions will be denied.
For the reasons stated in the accompanying Amended Memorandum Opinion, it is this 28th day of June 2010, ORDERED that:
On May 21, 2010, the Court denied the motion, but ordered the Government to specify when Jessamy did not appear in person. Paper No. 205. In a May 24, 2010 letter, the Government stated that Jessamy had not appeared in person for the December 9 and 23, 2008 wiretap orders. (Letter from Assistant United States Attorney Kwame J. Manley, May 24, 2010). On May 27, 2010, Wiggins again moved for a 17(c) subpoena, arguing that the Government's response was insufficient and that the testimony of Jessamy and Pipkin and Jessamy's telephone records and calendar entries were necessary to determine the dates on which Jessamy did not appear before the issuing judge. Paper No. 209.
In its Order denying Wiggins's first motion for 17(c) subpoena, the Court stated that if the Government failed to specify the dates on which Jessamy had not appeared before the issuing judge, it would assume that Jessamy had not appeared for any of the challenged wiretap orders. Id. Although the Government should have provided an affidavit with the requested information, their failure does not entitle Wiggins to the relief he requests in his second 17(c) motion. The Court will assume, for this motion, that Jessamy did not appear for any of the challenged orders. Accordingly, Wiggins's motion for a 17(c) subpoena will be denied.
Treating all the Maryland Rules as preconditions—and requiring strict compliance with them—would unduly broaden the Maryland Wiretap Act's exclusionary rule, which requires suppression if "the order was not obtained or issued in strict compliance with this subtitle." Md.Code Ann. 10-408(i)(1)(ii) (emphasis added). "Strict compliance" means that the Court "will not abide any deviation, no matter how slight, from the prescribed path" for obtaining wiretap orders. See State v. Siegel, 266 Md. 256, 274, 292 A.2d 86, 95 (1972). If strict compliance with all the Maryland Rules were required, the application could, for example, be held invalid if it did not contain a caption meeting the requirements of Rule 1-301(a). See Md. Rule 1-301. There is no authority that the exclusionary rule was intended to apply this broadly. The Maryland Wiretap Act requires that applications be submitted in writing upon oath or affirmation to a judge of competent jurisdiction. Because these requirements were satisfied, suppression is not required.