Maryland Wiretap Act No Shield For Surreptitious Recorder

Garrett Wozniak
Garrett Wozniak

It isn’t often that I get to write about an opinion on a criminal law matter.  However, the Maryland Court of Appeals’ opinion in Agnew v. State, No. 9, September Term 2018 (Md. Nov. 20, 2018), provides that chance.  In Agnew, Maryland’s highest court addressed the following question:  “Was a recorded communication on a [cell] phone between [Agnew] and an unidentified speaker intercepted in violation of the Maryland Wiretap Act and erroneously admitted at trial when there was no enumerated exception for its admissibility?”

The Maryland Wiretap Act governs the interception and disclosure of “wire, oral, or electronic communication,” and includes a number of prohibitions.  Md. Code Ann., Cts. & Jud. Proc. § 10-402(a).  For example, unless permitted by an exception, the Act makes it unlawful for a person to “[w]illfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . .”  Id.  The prohibitions apply to private conversations between people, whether face-to-face or via telephone.  Cts. & Jud. Proc. § 10-401(5)(i), (13)(i).  The crux of the statute is that Maryland is a two-party consent state.

A communication that is intercepted in violation of the Act must be excluded from “any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency,regulatory body, legislative committee, or other authority of this State, or a political subdivision thereof . . . .”  Cts. & Jud. Proc. § 10-405(a).

Here, Agnew used his iPhone to record a conversation with another individual, without that individual’s consent, and objected when the State tried to use the recording against him at trial.  The trial judge overruled the objection and the Court of Special Appeals agreed with that decision.

The Court of Appeals has now weighed in:  “We echo the purpose of the Wiretap Act articulated by the Court of Special Appeals in Maddox v. State.  The Wiretap Act ‘was designed with a two-fold purpose:  1) to be a useful tool in crime detection and 2) to assure that interception of private communications is limited.’  Maddox, 69 Md. App at 300, 517 A.2d at 372.  In a more recent decision, the Court of Special Appeals expounded on this articulation of the purpose, stating that  ‘[t]he clear purpose of the Maryland Wiretap Act is to prohibit secret recordings of private oral communications, without regard to which device may be used to accomplish that task.’  Holmes v. State, 236 Md. App. 636, 653, 182 A.3d 341, 350 (2018).”

Building upon prior Court of Special Appeals decisions, the State’s highest court endorsed the view that “when one party to a conversation expressly or implicitly consents to the recording of that conversation, the recording is admissible in evidence against the consenting party even though the other person or persons involved in the conversation were unaware of the interception.”  Maddox, 69 Md. App. at 301, 517 A.2d at 372.

The Wiretap Act provides protection to those who do not know that their conversation is being recorded; it does not protect those who surreptitiously record a conversation.  Stated differently, the Act does not allow the wrongdoer (the recorder) to suppress evidence that would be used against the wrongdoer on the basis that the other party did not consent to the recording.  In the Court’s words, “It would be equally, if not more, ludicrous to conclude that the purpose of the Wiretap Act extended to protect a party who records their own conversation without the consent of the other party, and then seeks to block its admission due to the intentional failure to obtain the other person’s consent. . . .  Because Agnew knowingly and intentionally recorded himself and another person on his phone, he should not be able to claim sanctuary as an “aggrieved person” under the Wiretap Act.”

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