dissenting:
I respectfully dissent because, as the circuit court found at the post-conviction hearing, the interception by Horn of the telephone conversation with Perry was inadvertent and not in violation of the Maryland wiretap statute.1
In my opinion the legal analysis is straightforward. Perry contends that the 22-second tape should have been suppressed. Suppression is governed by § 10-405 which in relevant part reads:
“Whenever any wire ... communication has been intercepted, no part of the contents of the communication ... may be received in evidence in any trial ... if the disclosure of that information would be in violation of [Subtitle 4].”
What constitutes a violation of Subtitle 4 by way of disclosure of information contained in an intercepted wire communication is found in § 10-402(a)(2). It reads: “Except as otherwise specifically provided in this subtitle it is unlawful for any person to ... (2) [w]ilfully disclose ... to any other person the contents of any wire ... communication, knowing or having reason to know that the information was obtained through the interception of a wire ... communication in violation of [Subtitle 4].”
What constitutes an interception of a communication in violation of Subtitle 4 is found in immediately preceding § 10-*89402(a)(1) reading in relevant part: “Except as otherwise specifically provided in this subtitle it is unlawful for any person to ... (1) [w]ilfully intercept ... any wire ... communication.” Thus, whether the content of an intercepted communication is to be suppressed turns on (excluding exceptions) whether the interception was willful.
This issue was addressed by the post-conviction court. It made the specific and ultimate fact-findings set forth below.
“The facts surrounding this case make it clear that this recording was not wilfully obtained, certainly a highly permissible inference from the facts as detailed below. The relationship between Lawrence Horn and James Perry was covered in layers of secrecy and deception. The evidence produced at the trial and the post-conviction hearing revealed the following:
“1. Telephonic secrecy — Lawrence Horn and James Perry established an elaborate plan to ensure that their telephone calls would not be traced. They utilized a calling card belonging to a Kamella McKinney, which was a false name assumed by Horn’s cousin Marsha Webb. Perry and Horn would always use a pay phone to initiate a call to the other. They attempted pay phone to pay phone calls to one another, without success.
“2. Wire transfers — Over the course of the conspiracy, Lawrence Horn sent money to Perry through Western Union. In an effort to avoid any connection between him and Perry, Horn used the name of George Shaw when sending the money. George Shaw, as more fully discussed below, was a name taken from a Los Angeles Times obituary.
“3. Turner utilized — After the murders, when Perry and Horn realized that their telephones may be subject to police surveillance, they utilized Thomas Turner, as an intermediary, to set up a time and place when contact needed to be made.
“4. Horn’s Deposition — Horn denied knowing James Perry during a civil deposition taken in 1994.
*90“5. No Paper Trail — During a search of Horn’s residence, the police obtained thousands of pages of text that was printed from certain cassettes, disks, and the hard drive on Horn’s computer. This included an address book, personal correspondence and personal notes. There was not one mention of James Perry, his phone number or his address in this information.
“6. Perry’s arrest — When Perry was arrested he asked whether anyone else was going to be arrested or indicted that day. When told yes, and when Lawrence Horn from California was identified as the other person, Perry said he had never heard of Horn.
“The efforts by Lawrence Horn and James Perry to leave no trace of contact with each other were substantial. They went to extraordinary lengths to hide their relationship. To suggest that Horn would ‘wilfully’ record a conversation between himself and Perry defies logical explanation. The only rational explanation for the existence of the 22-second tape is that the conversation was inadvertently recorded. Therefore, the Maryland Wiretap and Surveillance Act would not apply.
“Based on the reasons set forth above, this court finds that Exhibit 312, even if objected to in a timely fashion, would have been admissible during the trial in this case. Accordingly, the motion to suppress is denied.”
In this Court Perry did not contend that the finding of inadvertence was clearly erroneous and, in my opinion, the finding of inadvertence is a legitimate inference that the post-conviction court could draw from the evidence. The finding of inadvertence is not, in my view, rendered clearly erroneous, as the majority concludes, by the evidence of how Horn treated telephone conversations with people other than Perry. Indeed, the evidence of Horn’s taping of calls from others suggests how it came about that Horn inadvertently intercepted a telephone call from Perry who, inferentially, was never to place a telephone call to Horn’s home.
*91This Court’s principal conclusion is that the controlling provision is § 10-407(e). Section 10-407, in general, addresses the disclosure and use of the contents of intercepted communications. Subsections (a) and (b) deal with the investigatory disclosure and use of intercepted communications by any law enforcement officer “who, by any means authorized [by Subtitle 4], has obtained knowledge of the contents of any wire ... communication.” These subsections in general authorize disclosure and use “appropriate to the proper performance” of official duties of the law enforcement officers involved. Subsection (c) deals with use and disclosure as testimony and in relevant part reads as follows:
“Any person who has received, by any means authorized by this subtitle, any information concerning a wire ... communication ... intercepted in accordance with [Subtitle 4] may disclose the contents of that communication .. . while giving testimony.... ”
The majority concludes that the 22-second tape was acquired “by [a] means authorized by [Subtitle 4]” because it was seized under a search and seizure warrant, and I agree. I do not agree, however, that an inadvertent, and therefore non-willful interception, is suppressible under the statutory exclusionary rule of § 10-405. It is on this basis that the facts of the instant matter are distinguishable from those in Mustafa v. State, 323 Md. 65, 591 A.2d 481 (1991), where the interception was clearly willful. Nor do I agree that § 10-407(c) authorizes suppression on grounds that are broader than those specified in § 10-405, which may be invoked only when “disclosure of [the intercepted] information would be in violation of [Subtitle 4].”
The majority opinion departs from the rationale in Perry v. State, 344 Md. 204, 686 A.2d 274 (1996) (Perry I). On direct appeal, Perry contended that the challenged tape “was inadmissible under the legislatively created exclusionary rule” of § 10-405. Id. at 221, 686 A.2d at 282. To support suppression Perry relied on § 10 — 402(a). Id. at 224, 686 A.2d at 284. This Court concluded that the suppression issue was not before it on direct appeal, but could be raised on post-*92conviction. Id. at 228, 686 A.2d at 285. In discussing the issues to be developed on post-conviction, this Court said that “the inadequacy of the record [in Perry /] includes the lack of fact-findings bearing on whether there was a violation and whether it was willful.” Id. at 227, 686 A.2d at 285. This Court thereby recognized that the analysis proceeded from § 10-405 to § 10-402(a)(2) and ultimately to § 10-402(a)(l). As this Court asked the post-conviction court to do, the fact-findings have been made under the analysis in Perry I. The result is that the tape is admissible.
The majority adopts an analysis different from that in Perry I. Because Perry did not consent to the interception, the majority holds that the communication was not “intercepted in accordance with the provisions of this subtitle,” as that quoted language is used in § 10-407(c) and that the result is exclusion. Essentially the majority creates a limbo between the heaven of interceptions “authorized by” or “in accordance with” Subtitle 4 and the hell of conduct “in violation of’ Subtitle 4. In this limbo the majority says there dwell communications that are not intercepted in violation of Subtitle 4, because they are not willful and not subject to criminal penalty or civil liability, but are nevertheless subject to suppression because they were not “intercepted in accordance with the provisions of [Subtitle 4].” In my reading of the statute, there is but one concept bearing on admissibility, and that single concept is expressed either approvingly or disapprovingly, depending on whether the intercepted communication may or may not be used as evidence. When the communication may not be used as evidence the statute speaks disapprovingly of the “violation” of Subtitle 4. See § 10-405. When the communication is not in violation of Subtitle 4 and may be used as evidence, the statute speaks approvingly of the intercept and use of the communication as having been acquired by “means authorized by” or “in accordance with” Subtitle 4. See § l(M07(c). Insofar as admissibility is concerned there are, in my view, only two classes of interceptions under Subtitle 4: those that are in violation and those that are not in violation.
*93Supporting this conclusion is § 10-407(d) where the words relied upon by the majority, i.e., “in accordance with the provisions of [Subtitle 4]” are used. Subsection (d) reads:
“An otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this subtitle, does not lose its privileged character.”
In subsection (d) the phrase “in accordance with” is used in contradistinction to the phrase, “in violation of,” and the combination of the two phrases clearly is intended to encompass the entire spectrum of intercepted communications. The person who enjoys the privilege does not lose it simply by virtue of an interception, of any kind, of that person’s communication.
The federal counterpart to § 10-407(d) is 18 U.S.C. § 2517(4) (“No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.”). The federal act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1994), was one of the subjects of Senate Report No. 1097, 90th Cong., reprinted in, 1968 U.S.C.C.A.N. 2112-309. The report explains the purpose of 18 U.S.C. § 2517(4). That “provision is intended to vary the existing law only to the extent it provides that an otherwise privileged communication does not lose its privileged character because it is intercepted by a stranger.” 1968 U.S.C.C.A.N. at 2189.
The concern of § 10-407(d) and 18 U.S.C. § 2517(4) is interception by a stranger, and it is immaterial whether that interception is or is not a violation. To encompass all interceptions Congress and the General Assembly used the language “intercepted in accordance with, or in violation of.” “[I]n accordance with” should be given the same meaning in § 10-407(c) as it has in the immediately following § 10-407(d). There is no limbo category.
Also instructive is United States v. Baranek, 903 F.2d 1068 (6th Cir.1990), an appeal by the Government from a suppres*94sion order. There, federal agents had been authorized by court order to tap the telephone of a suspected drug dealer. Someone on the dealer’s premises inadvertently left the telephone in the kitchen of the dealer’s residence off of the hook and not in use. Later there was a face-to face, oral conversation in the kitchen between the dealer and a co-conspirator which was carried over the open telephone and was recorded on the wiretap equipment. The District Court suppressed the conversation because there had been an oral interception, whereas the court- order authorized only a wire interception. The Sixth Circuit reversed, analogizing to the plain view doctrine in search and seizure law. Id. at 1071. The court said that “[w]here, as here, we have a case with a factual situation clearly not contemplated by the statute, we find it helpful on the suppression issue (as opposed to the question of whether there was a violation of the authorization order) to look to fourth amendment law.” Id. at 1072. In the matter before this Court, Horn’s inadvertent interception of his conversation with Perry is similar to the telephone’s being left off of the hook in Baranek. Regardless of whether one agrees or disagrees with the manner in which the government obtained the content of the conversation in Baranek, in the instant matter it is clear that the State’s acquisition of the tape was lawful. Here, the combination of inadvertent interception, even though without the consent of all (or any) participants, coupled with lawful acquisition of the content by the State, should result in admissibility.
Also incompatible with the majority’s analysis are United States v. Vest, 813 F.2d 477 (1st Cir.1987), and United States v. Phillips, 540 F.2d 319, cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611 (1976). In each of these cases, a private individual who was not acting as a government agent willfully violated the federal act by intercepting oral communications. In each case, when ruling to suppress that evidence, the appellate court followed a route that took it from § 2515 (suppression) to § 2511(1) (violation) without meandering through or finding any significance in § 2517(3) (use as testimony).
*95For these reasons I would affirm.
Judge KARWACKI has authorized me to state that he joins in the views expressed herein.. In this dissenting opinion references to the Maryland wiretap statute, Maryland Code (1974, 1998 Repl.VoL), §§ 10-401 through 10-414 of the Courts and Judicial Proceedings Article will be indicated simply by the prefix § 10-4, followed by the two digits identifying the particular section of Subtitle 4, "Wiretapping and Electronic Surveillance.”