State v. McGhee

Citations: 447 A.2d 888; 52 Md. App. 238; 1982 Md. App. LEXIS 323Docket: 1698, September Term, 1981

Court: Court of Special Appeals of Maryland; July 14, 1982; Maryland; State Appellate Court

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The case of State of Maryland v. Thomas Monroe McGhee addresses whether the State Prosecutor has the authority to obtain a wiretap order to intercept communications between individuals suspected of bribery. The outcome hinges on this determination; if the State Prosecutor is deemed to lack such authority, evidence obtained through the wiretap must be suppressed, resulting in McGhee's unprosecuted status despite potential culpability.

The background involves the attempted bribery of Annapolis Police Officers, which led Chief John C. Schmitt to involve the Maryland State Police. Sgt. Peter F. Edge, part of the State Police, initiated a wiretap application supported by sufficient affidavits, after an ineffective use of a "body wire" to record incriminating statements from a suspect, Richard E. Lomax. Following the wiretap, McGhee and ten others faced a 17-count indictment for various offenses, including bribery and conspiracy.

McGhee moved to suppress the wiretap evidence, claiming it resulted from an illegal search and seizure. The court granted this motion, leading to the dismissal of the charges against him. The appeal challenges the decision, specifically focusing on the legal authority of the State Prosecutor in conducting such wiretap operations. Historically, prior to the State Prosecutor's establishment, prosecutorial powers were limited to local jurisdictions, with the Attorney General facing constitutional constraints on criminal investigations.

The State Constitution, Article V. 3, restricts the Attorney General's involvement in criminal investigations to two scenarios: (1) when directed by an act of the General Assembly or a joint resolution, and (2) when ordered by the Governor. In response to the need for a prosecutorial entity with statewide authority, a Constitutional Amendment clarifying the Attorney General's powers was submitted to Maryland voters and adopted on November 2, 1976. This led to the enactment of Laws 1976, Ch. 612, which detailed the qualifications, duties, and appointment of the State Prosecutor, now codified as Md. Ann. Code art. 10. 33A-33F. 

Under Md. Ann. Code art. 10. 33B (a), the State Prosecutor has various responsibilities, including the authority to investigate certain criminal offenses on his own initiative or at the request of specified officials, excluding offenses involving himself or his staff. These offenses include violations of state election laws, public ethics laws, bribery laws involving state officials, criminal malfeasance in office, and violations of extortion, perjury, and obstruction of justice laws linked to these areas. 

Additionally, the State Prosecutor may investigate criminal activities that span multiple jurisdictions within the state upon request from the Governor, Attorney General, General Assembly, or a State's attorney. On July 13, 1981, Governor Harry Hughes directed the State Prosecutor to investigate bribery allegations involving the Annapolis City Police Department related to an illegal lottery operation across multiple jurisdictions. Subsequently, the State Prosecutor applied for a wiretap order, asserting his authority to do so under Md. Ann. Code art. 10. 33B (g).

The core issue at hand is the authority of the State Prosecutor to seek a wiretap order under Maryland law. Prior to the current wiretap and electronic surveillance law (Md. Cts. Jud. Proc. Code Ann. 10-401 to 10-413), wiretaps in Maryland were governed by federal and state statutes. The Maryland Wiretap Law aligns with the federal Omnibus Crime Control and Safe Streets Act of 1968, which stipulates that state statutes must permit wiretap applications by designated authorities. According to 18 U.S.C. 2516, only the Attorney General or State's Attorneys are authorized to apply for wiretap orders, and the Maryland statute (Courts Art. 10-406) specifically names these roles without including the State Prosecutor. The argument against the State Prosecutor's authority is based on this statutory language, suggesting that any wiretap order he sought would be invalid, rendering the evidence obtained inadmissible. The ruling affirms the dismissal of the indictment against the appellee, with costs assigned to Anne Arundel County. Additionally, it is noted that a 1982 amendment to section 10-406 subsequently incorporated the State Prosecutor into the list of authorized officials, likely in response to this ruling.