Agnew v. State

Rodney Lee Agnew v. State of Maryland, No. 9, September Term 2018. Opinion by Hotten,
J.

CRIMINAL LAW – EVIDENCE – RECORDED CONVERSATIONS – The Court of
Appeals held that where a party to a conversation participates in or consents to the
recording of that conversation, the Maryland Wiretap Act, Courts and Judicial Proceedings
§ 10-402, does not bar admission of that recording against the consenting party.
Circuit Court for Montgomery County
Case No. 129704C
Argued: September 7, 2018 IN THE COURT OF APPEALS

OF MARYLAND

No. 9

September Term, 2018

__________________________________

RODNEY LEE AGNEW

v.

STATE OF MARYLAND
__________________________________

Barbera, C.J.,
Greene,
*Adkins,
McDonald,
Watts,
Hotten,
Getty,

JJ.
__________________________________

Opinion by Hotten, J.
__________________________________

Filed: November 20, 2018

*Adkins, J., now retired, participated in the
hearing and conference of this case while
an active member of this Court; after being
recalled pursuant to the MD. Constitution,
Pursuant to Maryland Uniform Electronic Legal
Materials Act
Article IV, Section 3A, she also
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.
participated in the decision and adoption of
2018-11-20 this opinion.
08:31-05:00

Suzanne C. Johnson, Acting Clerk
 On June 17, 2016, Petitioner, Rodney Lee Agnew (“Agnew”) was indicted by the

Grand Jury for Montgomery County on charges of possession of a firearm during a drug

trafficking crime, possession of a firearm after a disqualifying conviction, possession with

intent to distribute heroin, possession with intent to distribute cocaine, conspiracy to

possess with intent to distribute heroin, and conspiracy to possess with intent to distribute

cocaine. At trial, the trial judge overruled an objection by Agnew to the admission of a

recorded conversation recovered from his cell phone on the ground that it lacked two-party

consent and was therefore inadmissible.1 The trial judge entered a judgment of acquittal

on both counts of conspiracy to possess with intent to distribute. Following the two-day

trial, on November 16, 2016, Agnew was convicted of possession of a firearm after a

disqualifying conviction, possession with intent to distribute heroin, and possession with

intent to distribute cocaine and acquitted of possession of a firearm during a drug

trafficking crime. On February 23, 2017, Agnew was sentenced to eight years of

imprisonment on each count, to run concurrently.

Thereafter, Agnew noted a timely appeal to the Court of Special Appeals based on

the alleged error in admitting the audio-recorded conversation. The Court of Special

Appeals affirmed the judgment of the trial court in an unreported opinion on December 26,

2017. Agnew v. State, No. 2701, Sept. Term, 2016, 2017 WL 6611973 (Md. Ct. Spec. App.

Dec. 26, 2017). Agnew sought this Court’s review regarding whether a recorded

1
The Maryland Wiretap Act, which generally prohibits the interception of any
“wire, oral, or electronic communication,” requires any lawful communication to have two-
party consent prior to the interception of the communication. Maryland Code, Courts and
Judicial Proceedings Article, § 10-402(c)(3).
communication on a cell phone between Agnew and an unidentified speaker was

“intercepted” in violation of the Maryland Wiretap Act and erroneously admitted at trial.2

For the reasons articulated below, we shall affirm the judgment of the Court of Special

Appeals.

BACKGROUND

In November 2015, members of the Montgomery County Police Department

initiated an investigation into Agnew for suspicion of narcotics distribution. Members of

law enforcement obtained and executed a valid search warrant for Agnew’s apartment,

where the following items were recovered: a bag of marijuana, a small pink wallet that

contained a controlled dangerous substance, a silver iPhone, United States currency, a

suitcase containing a loaded .32 caliber revolver and a black digital scale, a number of

baggies containing a “white powder substance,” a baggie with a green leafy substance, a

bottle of creatine, sandwich bags, and another digital scale. The Montgomery County

Police Crime Laboratory subsequently tested and identified the substances found as

including marijuana, cocaine, heroin, and a combination of cocaine and heroin known as

“speedball.” Pursuant to the search warrant, law enforcement extracted data from the silver

iPhone that included several text message communications and an audio recording of a

phone conversation between Agnew and an unidentified person. The audio recording,

2
Specifically, we granted certiorari on 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?”
2
which is the subject of this appeal, was taken with and stored on the silver iPhone’s voice

memo program.3

The Trial

The Grand Jury for Montgomery County indicted Agnew on June 17, 2016 and the

trial commenced on November 14, 2016. At trial, the State introduced the audio-recorded

voice memo extracted from Agnew’s iPhone. After the playing of the entirety of the

recording, Agnew objected to its admissibility at the bench, as reflected in the following

colloquy:

[DEFENSE COUNSEL]: Your Honor, there was no evidence that there was
a consent by both people in the conversation. You hear the other person
saying, I mean how that illegal act was taking place.

THE COURT: Well, if it’s illegal your client did it, didn’t he?

[DEFENSE COUNSEL]: I understand that but it doesn’t make it admissible
because it’s illegal. You can’t use illegally obtained material.

[THE STATE]: If it were illegally obtained by the government then it
wouldn’t be able to be used, that’s the Fourth Amendment which doesn’t
apply to [Agnew] and his illegal activities.

[DEFENSE COUNSEL]: No, it comes up in domestic cases rather regularly
when someone is surreptitiously recording and then tries to use it and it’s not
admissible because it’s a surreptitious recording. There’s no indication, first
right off that I’m recording this because I want to know what you’re doing
and you know it’s recorded. Here we don’t have that.

THE COURT: Well, if the State would try to use it and if the State intends
to use it against the person on the other phone, undermine, whoever that is,
then I would agree then that’s illegal and you couldn’t use it against whoever

3
All iPhones are automatically equipped with a voice memo application. This
program accesses the phone’s built-in microphone and can be used to make recordings.
These recordings can then be saved and stored within the voice memo program.
3
 that other person is. But this is a recording that [Agnew] made and it’s being
used against the defendant so it should be admissible.

Thereafter, the trial court overruled Agnew’s objection and admitted the recording

into evidence. The State later replayed segments of the recording at trial. Detective Ryan

Street testified as an expert in the areas of digital forensic examination of data recovery,

narcotics trafficking, and narcotics dealing. Detective Street testified that the main voice

on the recording belonged to Agnew, that the content of the conversation was “indicative

of a drug deal,” and that the conversation reflected that Agnew was aware that he could be

arrested for transporting illegal drugs and was concerned about the risk of being stopped

by the police.

On November 16, 2016, the jury found Agnew guilty of possession of a firearm by

a prohibited person, possession with intent to distribute heroin, and possession with intent

to distribute cocaine. The trial court sentenced him on February 23, 2017 to eight years of

incarceration on each count, to run concurrently. Thereafter, Agnew noted a timely appeal

to the Court of Special Appeals.

The Court of Special Appeals

Before the Court of Special Appeals, Agnew challenged, inter alia, the trial court’s

decision to admit the audio recording taken from the voice memo program on Agnew’s

iPhone. See Agnew, 2017 WL 6611973, at *1 (posing whether “the trial court err[ed] in

admitting a communication, recorded on a cell phone, between [Agnew] and an

unidentified speaker, which was intercepted in violation of the Maryland Wiretap

Statute[.]”). Agnew argued that the Maryland Wiretap Act barred admission of the audio

4
recording “because there is no evidence that the unidentified speaker gave prior consent to

the interception of the communication.” Id. at *7. Agnew asserted that the recording was

an “unlawfully intercepted communication” and that no enumerated exception within the

Wiretap Act applied. Id. at *6 (footnote omitted). In contrast, the State argued that this

issue was “not preserved for [the Court of Special Appeals’] review because [Agnew] did

not timely object to the admission of the recording.” Id. Even if preserved, the State

contended that the trial court “correctly admitted a recording [Agnew] made of himself

selling drugs.” Id.

Finding that Agnew preserved the issue, the Court of Special Appeals affirmed the

trial court’s admission of the audio recording, determining that the “protective umbrella

that the [General Assembly] raised over [third parties] and others who do not consent to

the interception of their conversations affords [Agnew] no shelter.” Id. at *8 (quoting State

v. Maddox, 69 Md. App. 296, 301, 517 A.2d 370, 372 (1986)). Reiterating its holding in

Maddox, the Court of Special Appeals stated 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.” Agnew, 2017 WL

6611973, at *8 (quoting Maddox, 69 Md. App. at 301, 517 A.2d at 372). Because Agnew

had recorded the conversation between himself and the unidentified person, he was a

willing party to the surreptitious recording and was therefore not entitled to the protections

afforded by the Wiretap Act.

5
 Agnew filed a timely petition for certiorari to this Court, requesting that we

consider whether the Maryland Wiretap Act bars the audio recording from admission,

despite the fact that Agnew himself created the recording.

STANDARD OF REVIEW

The interpretation of a statute is a question of law, which this Court considers de

novo. Harrison-Solomon v. State, 442 Md. 254, 265, 112 A.3d 408, 415 (2015). The first

step is “to examine the text. ‘If the language of the statute is unambiguous and clearly

consistent with the statute’s apparent purpose,’ our inquiry as to legislative intent ends

ordinarily and we apply the statute as written, without resort to other rules of construction.”

Id. (citing Lockshin v. Semsker, 412 Md. 257, 275, 987 A.2d 18, 28-29 (2010)) (footnote

omitted); see also Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1991). If

ambiguities are found, then “other indicia of legislative intent are consulted, including the

relevant statute’s legislative history, the context of the statute within the broader legislative

scheme, and the relative rationality of competing constructions.” Harrison-Solomon, 442

Md. at 265-66, 112 A.3d at 415 (citing Witte v. Azarian, 369 Md. 518, 525-26, 801 A.2d

160, 165 (2002)).

DISCUSSION

The Maryland Wiretap Act

The Maryland Wiretap Act, codified in Title 10, Subtitle 4 of the Maryland Code,

Courts and Judicial Proceedings (Cts. & Jud. Proc.), governs the interception and

disclosure of “wire, oral, or electronic communications.” Cts. & Jud. Proc. § 10-402(a)

outlines the statute’s general prohibitions, stating:

6
 (a) Except as otherwise specifically provided in this subtitle it is unlawful for
any person to:

(1) Willfully intercept, endeavor to intercept, or procure any other person
to intercept or endeavor to intercept, any wire, oral, or electronic
communication;

(2) Willfully disclose, or endeavor to disclose, to any other person the
contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the
interception of a wire, oral, or electronic communication in violation
of this subtitle; or

(3) Willfully use, or endeavor to use, the contents of any wire, oral, or
electronic communication, knowing or having reason to know that the
information was obtained through the interception of a wire, oral, or
electronic communication in violation of this subtitle.

Electronic communications include “any transfer of signs, signals, writing, images,

sounds, data, or intelligence of any nature transmitted in whole or in part by wire, radio,

electromagnetic, photoelectronic, or photooptical system[,]” while oral communications

include “any conversation or words spoken to or by any person in a private conversation.”

Cts. & Jud. Proc. § 10-401(5)(i), (13)(i). The Wiretap Act requires the exclusion of any

communications unlawfully intercepted in violation of § 10-402(a), stating:

[W]henever any wire, oral, or electronic communication has been
intercepted, no part of the contents of the communication and no evidence
derived therefrom may be received in evidence in 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 if the disclosure of that information would be in
violation of this subtitle.

Cts. & Jud. Proc. § 10-405(a). An “aggrieved person . . . may move to suppress the contents

of any intercepted wire, oral, or electronic communication, or evidence derived therefrom,

on the grounds that . . . the communication was unlawfully intercepted . . . .” Cts. Jud.

7
Proc. § 10-408(i)(1)(i). Cts. & Jud. Proc. § 10-401(1) defines an aggrieved person as “a

person who was a party to any intercepted wire, oral, or electronic communication or a

person against whom the interception was directed.”

An intercepted communication may be admissible against a person where all

“parties to the communication have given prior consent to the interception,” or where one

of the other ten enumerated exceptions apply. Cts. & Jud. Proc. 10-402(c)(3).4

The Protections of the Wiretap Act Do Not Apply to Agnew

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). In light of this purpose,

the Court of Special Appeals concluded that Holmes’ surreptitious use of her own

cellphone to record a face-to-face conversation with her child was a “presumptive violation

of Maryland’s wiretap law” and was, therefore, inadmissible against a non-consenting third

party. Id.

4
Agnew argues, and the State concedes, that none of these exceptions permits
admission of the audio recording in the case before us.
8
 In Benford v. Am. Broadcasting Cos., Inc., American Broadcasting Companies, Inc.

(ABC) surreptitiously recorded plaintiff George Benford while he gave a cancer insurance

sales presentation to congressional representatives posing as prospective purchasers. 554

F.Supp. 145 (D. Md. 1982). This recording was subsequently broadcast on the ABC

Nightly News, and was alleged to have caused Benford “grave” injury. Id. at 147. Benford

claimed that the filming violated the Maryland Wiretap Act because it was taken without

his knowledge or consent. Id. In interpreting the Maryland Wiretap Act, the United States

District Court for the District of Maryland noted that “[o]ne of the clear purposes of the

Maryland Act is to prevent, in non-criminal situations, the unauthorized interception of

conversations where one of the parties has a reasonable expectation of privacy.” Id. at 151.

The court went on to conclude that Benford had a reasonable expectation of privacy in the

communications because he “did not personally expect, nor did he intend, for his remarks

to be intercepted[.]” Id. at 154.

The facts of Maddox are similar to the case at bar. Joseph Maddox confessed to law

enforcement authorities that he shot a man named Larry Woodland. 69 Md. App at 298,

517 A.2d at 371. He admitted to having last seen the handgun he used when a woman

named Mary Barnes put it into her purse. Id. To aid authorities in recovering the weapon,

Maddox permitted law enforcement to listen and simultaneously record a conversation he

had with Barnes over the telephone. Id. Barnes was unaware that law enforcement was

recording the conversation and therefore, did not give her consent to its interception. Id.

The State subsequently offered the recorded conversation into evidence against Maddox

and Maddox objected, claiming that it was inadmissible against him because Barnes never

9
consented. Id. The hearing judge suppressed the evidence, concluding that it was

inadmissible as an unlawfully intercepted communication in violation of the Wiretap Act.

Id. However, the Court of Special Appeals reversed, holding 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.” Id. at

301, 517 A.2d at 372. Therefore, while the recording would have been inadmissible if

offered against Barnes, Maddox’s consent prevented him from challenging the recording’s

admission against him. Id. at 300-01, 517 A.2d at 372 (“If Mrs. Barnes were a defendant,

the statute would protect her; but she was not a defendant.”).

As Maddox and Benford make clear, the protections afforded by the Wiretap Act

offer shelter to those who do not consent to the interception of their private conversations,

thereby maintaining a reasonable expectation of privacy in their conversations. 69 Md.

App at 301, 517 A.2d at 372 (explaining that the “protective umbrella” of the Wiretap Act

extends to those “who do not consent to the interception of their conversations . . .”). Prior

holdings by this Court involving the Wiretap Act affirm this principle. In Perry v. State,

the State attempted to introduce a 22-second recorded conversation between defendant

James Perry and his co-conspirator. 357 Md. 37, 40, 741 A.2d 1162, 1164 (1999). Perry

objected to its admission, stating that it was taken by Perry’s co-conspirator, without

Perry’s consent. Id. at 46-47, 741 A.2d at 1167. The State countered that even if the

interception was illegal, Perry was a co-conspirator and “that it was not the legislative

intent for the statute to cover that situation.” 357 Md. at 47, 741 A.2d at 1168. We rejected

10
this argument, holding that “there is no basis for concluding that an otherwise aggrieved

person – in this instance one whose conversation is taped without his consent – loses his

right to suppress the tape merely because the taping is done by a co-conspirator.” Id. at 62,

741 A.2d at 1175 (citing Maddox, 69 Md. App. at 300-01, 517 A.2d at 372); see also

Mustafa v. State, 323 Md. 65, 591 A.2d 481 (1991) (suppressing a recording that lacked

one party’s consent, thereby violating Maryland’s two-party consent provisions, even

though the recording was made in the District of Columbia which only requires single-

party consent); Wood v. State, 290 Md. 579, 584, 431 A.2d 93, 95 (1981) (holding that an

electronic recording of disputed conversations between the defendant and another person,

when the latter did not consent to its interception, was inadmissible against the non-

consenting party for impeachment purposes). However, we explicitly left open the

question of whether a recorded communication is admissible against the interceptor. Perry,

357 Md. at 61, 741 A.2d at 1175 (declining to determine “whether one who unlawfully

tapes a conversation can seek the protection of the exclusionary rule embodied in the

Maryland statute. . .”).

Agnew asserts that the audio recording was unlawfully intercepted because there is

no evidence that the unidentified person in the recording consented to Agnew’s recording

of the conversation. Agnew argues that it is irrelevant that he gave consent by recording

the conversation himself because the unidentified person did not consent and therefore, the

requirement that all parties to the communication give consent prior to the interception

pursuant to Cts. & Jud. Proc. § 10-402(c)(3) had not been satisfied. Agnew attempts to

differentiate his case from Maddox by pointing out that Maddox explicitly permitted law

11
enforcement to listen and record his conversation with Barnes, while Agnew “never

relinquished his privacy interest in the communication because there is no evidence that he

ever shared it with anyone else.”

The purpose of the Wiretap Act makes clear, and as the Court of Special Appeals

stated in Maddox, the Wiretap Act’s “protective umbrella” was not intended to extend to

Agnew under the scenario before us.

In enacting [the Maryland Wiretap Act], the General Assembly sought to
protect those who do not know their conversation is being electronically
intercepted; it did not intend to allow an accused to consent to the
surreptitious recording of his or her conversation with another party and later
cause that recording to be suppressed on the ground that the other party to
the conversation did not consent. The result would be ludicrous.

Maddox, 69 Md. App. at 301, 517 A.2d at 372. 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. Agnew cannot

be an aggrieved person by virtue of his own act of interception. Agnew did not merely

permit a third party to record the conversation, as in Maddox, but intercepted it himself,

deliberately violating the Wiretap Act. 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.

The Wiretap Act protects oral communications, including “any conversation or

words spoken to or by any person in a private conversation.” Cts. & Jud. Proc. § 10-

401(13)(i) (emphasis added). We have consistently interpreted the word “private” to be

12
consistent with Fourth Amendment jurisprudence, encompassing conversations in which

the participants have a “reasonable expectation of privacy.” Fearnow v. Chesapeake &

Potomac Tel. Co. of Md., 342 Md. 363, 376, 676 A.2d 65, 71 (1996). In determining

whether a recorded conversation was “private” under the Wiretap Act, “we apply the two-

pronged inquiry applicable to search and seizure cases set forth in Katz v. United States,

389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967) (Harlan, J. concurring).” Malpas v. State,

116 Md. App. 69, 84, 695 A.2d 588, 595 (1997).5

Unlike the plaintiffs in Katz and Benford, Agnew did not have a reasonable

expectation of privacy in his conversation with the unidentified person. Agnew clearly

intended for the communication to be intercepted because he was the one who made the

surreptitious recording. Cf. Benford, 554 F. Supp at 154. Agnew’s expectation of privacy

is more akin to the level of privacy one would have if they engaged in a loud, public

conversation that could be overheard rather than that of a person who reasonably believed

their private conversation was not being recorded. See Katz, 389 U.S. at 361, 88 S. Ct. at

516 (Harlan, J. concurring) (“[C]onversations in the open would not be protected against

being overheard, for the expectation of privacy under the circumstances would be

unreasonable.”) (citing Hester v. United States, 265 U.S. 57, 44 S. Ct. 445 (1924)). Agnew

lacks a reasonable expectation of privacy in the audio-recorded conversation and is

5
“[T]here is a twofold requirement, first that a person has exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as ‘reasonable.’” Katz, 389 U.S. at 361, 88 S. Ct. at 516 (Harlan, J.
concurring).
13
therefore not entitled to the protections afforded by § 10-402(a) of the Maryland Wiretap

Act.

CONCLUSION

We conclude that the trial court did not err in admitting the audio-recorded

conversation over the objection of Agnew. Agnew cannot use the Maryland Wiretap Act

to prevent admission of a recording that he made merely because the unidentified person

did not consent to its interception. In sum, we determine that the intended purpose of the

Maryland Wiretap Act was not to protect a party who records a conversation without the

consent of the other parties, and then provide the opportunity of that party to block its

admission. As such, where a party to a communication consents to or participates in the

interception of that communication, § 10-402(a) of the Maryland Wiretap Act does not

render the intercepted communication inadmissible against the consenting party.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.

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