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Maryland’s Wiretap Act is one of the few in the country that holds that it is illegal to intercept or record a conversation, unless all parties to the conversation consent.
Maryland’s highest Court in an opinion delivered last week explored whether the party who made the illegal recording can object to its use against him, in a case called Rodney Lee Agnew v. State of Maryland.
The Court of Appeals’ opinion indicates that the Montgomery County police investigated Agnew on suspicion of narcotics trafficking.
They obtain a warrant to search his apartment, seizing drugs, a handgun, and an iPhone. A search of the phone revealed a recording of a conversation between Agnew and an unidentified person.
At trial, over objection the State played the audio recording. A police Detective testified that the Defendant was doing most of the talking on the recording, which was indicative of a drug deal as well as showing Agnew’s concern about being stopped by the police.
A jury convicted him of unlawful possession of a firearm, and possession with intent to distribute heroin and cocaine, and the intermediate appellate court upheld the conviction.
The Court of Appeals took the case to consider the novel argument that since the recording was made illegally, it should not have been admitted in evidence even against the person who made the recording. It noted that the purpose of the Wiretap Act is to provide a tool for detection or crime, while also to limit the interception of private conversations.
The law allows an aggrieved party, who did not consent to their conversation being intercepted, to object to use of that recording.
However, the Court found it ludicrous to suggest that the person who deliberately violated the Act by taping a conversation without consent, could then object to use of that recording against him in trial.
The purpose of the law is to protect the person who does not know she is being recorded. The Defendant could not be an “aggrieved party” since he made the recording himself, so the audio recording was clearly admissible against him in his criminal trial.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.