Wednesday, June 08, 2011

Davis v State MD: MD Didnt Violate ECPA by Tapping Cell Phone Call Placed & Received in Virginia

Davis v. State, Md: Court of Special Appeals 2011

Appellant appeals trial court's denial of Appellant's Motion to Suppress evidence on grounds that law enforcement violated the Electronic Communications Privacy Act.

Issue: Does Maryland Law Enforcement have authority to intercept a call made on a Virginia registered mobile phone, where the caller was in Virginia and the recipient was in Virginia.

Holding: Lower court affirmed. The two relevant factors are the situs of the crime is in Maryland and the location of the listening post - where the wiretap took place, is in Maryland.

The case is filled with wonderful language and an extensive review of the history of wiretap authority. It starts:

Where was the interception? In football, a quarterback, standing on his own ten-yard line, may direct a pass to his wide receiver on the forty-yard line. An intervening defensive back, however, with probable cause to anticipate the pass, may leap up and pull the ball out of the air at the thirty-yard line. In the binary "either-or" world of football, the interception precludes the reception. In the multi-layered world of electronic surveillance, by contrast, the message may be received at its destination even as it is simultaneously intercepted in mid-flight. Our problem on this appeal is to pinpoint the legally significant spot at which an electro-magnetic transmission is effectively converted by the opposing team to its own use. Where, jurisdictionally, does the interception take place? At the ten-yard line, the thirty-yard line, the forty-yard line, or at all three places at once?

On the other hand, does such a question even make sense? May valid analogies be drawn between a tangible actuality such as a football and an intangible concept such as communication? Is intercepting the opposing quarterback's pass at all analogous to aiming a parabolic microphone at him to intercept his signal calling? Analogies, at the very least, will be highly strained.

In focusing on the situs of the crime in question, which was in Maryland, and the location of the listening post, which was in Maryland, the Court stated
In the earlier and simpler world of wiretapping, with caselaw trailing all the way back toOlmstead v. United States, supra, in 1928, a focus on the actual location of the phone to be tapped made sense. The phone was tethered by a landline and it could not wander off, let alone cross a boundary line. In the infinitely more fluid world of cellular phone technology, by contrast, the physical location of a cell phone at any given moment is so random as to be meaningless. The instrument itself can easily cross, and even recross, a political border — county, state, or national — in the course of a single conversation. The jurisdictional dilemmas, if the focus were on the instrument itself, could be kaleidoscopic. We confidently hold that the Maryland General Assembly did not, with its 1991 amendment, intend to create such a jurisdictional phantasmagoria.

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