Argued: January 12, 2016
Circuit Court for Montgomery County Case No. 122857C
Barbera, C.J., Battaglia Greene Adkins McDonald Watts Hotten, JJ.
McDonald, J, concurs
Police access to communications over various networks plays a key role in many criminal investigations. A particularly important network is the telephone system. Surveillance of the telecommunications network, however, is heavily circumscribed by constitutional and statutory protections at both the state and federal level. In this case, we are asked to interpret Md. Code (1973, 2013 Repl. Vol., 2015 Supp.), § 10-402(c)(2) of the Courts and Judicial Proceedings Article ("CJP")-an exception to the Maryland Wiretapping and Electronic Surveillance Act's general prohibition on the interception of wire, oral, and electronic communications.
FACTS AND LEGAL PROCEEDINGS
Donald W. ("Donald") is a 44-year-old man living in West Virginia. As a child, Donald lived with his mother Shanda Seal, and his stepfather, Mack Henry Seal, Jr. in Montgomery County, Maryland. The Petitioner in this case, David Seal ("Seal"), is the brother of Mack Seal and the step-uncle of Donald. Seal lived with his mother, Donald's step-grandmother, in Montgomery County.
During the summer of 1982, when he was ten years old, Donald spent multiple nights at his step-grandmother's house and would often sleep in the guest bedroom. He testified that he awoke one morning to "someone touching" his penis. When Donald woke fully, he saw Seal leaving the guest bedroom. Seal returned about five minutes later and began to fondle Donald's penis beneath his underwear. Donald was "scared" and "didn't know what to do."
Donald testified that the sexual abuse continued throughout the summer of 1982 in different rooms throughout the house and in a barn behind the house. Seal performed anal and oral sex on Donald, and had Donald perform oral sex on him. Donald stated that Seal even used the handle of a plunger to penetrate Donald's anus. Donald estimated that the abuse occurred between 10 and 20 times that summer. In addition, Donald testified that the abuse continued for several years thereafter, but ended "[c]lose to the end of sixth grade and the beginning of seventh grade."
Donald did not tell anyone about the abuse while it was occurring because he was "scared" and "afraid." Seal told Donald that he would hurt Donald's mother and brother if he reported the abuse. The first time Donald told anyone about the abuse was when he was 21 years old. Donald told his mother and stepfather. They were upset, but did not do anything about it. Donald did not contact the police or anyone else because he was embarrassed.
Years later, Donald told his current wife, Stacey, about the abuse. In approximately mid-2000, Stacey confronted Seal in the parking lot following a family member's funeral. Stacey asked Seal "why he did that to [Donald]" and told Seal that "he should be ashamed of himself." Seal responded that "the devil had a hold of him" and that he was "sorry for what he did."
A few years later, Donald telephoned Seal because the abuse had "been weighing heavy" on him. Donald asked Seal why he had abused him as a child. Seal repeated what he had told Stacey and replied that "the devil got a hold of him." After speaking for approximately 20 minutes, Seal told Donald that he would call him back later. About a week later, Seal called Donald and apologized to him. He told Donald that he was sorry "if he ever did anything" and "was a changed man and he went to church." Seal offered to "make payments" to Donald and offered up to $7, 000.00. Donald declined the financial offer from Seal.
On January 22, 2013, Donald went to the police station in Rockville, Maryland and met with Detective Tracey Copeland ("Copeland" or "Detective") of the Montgomery County Police. After telling Copeland about the abuse, Donald and Copeland tried to call Seal together "a couple of times that day" in an effort to engage Seal in a discussion of the abuse and elicit an admission or confession. These phone calls were unsuccessful. Donald and Copeland then decided that they would wait a couple of days before calling Seal again. At a hearing where the trial court considered Seal's motion to suppress, when asked what she told Donald, Copeland testified as follows:
I showed him the equipment that I would be using, sort of gave him the process with respect to what we normally did in that type of monitored phone call and then proceeded to attempt to make the phone call.
Copeland met with Donald in Frederick, Maryland after the January 22 meeting and twice attempted a phone sting,  but they were never able to reach Seal. As a result, Copeland provided Donald with equipment that would enable him to record a telephone conversation with Seal. Copeland testified at trial that she "showed [Donald] the equipment that [she] utilize[d] in order to do the phone sting, " and "made sure he understood how to work it" and "how to operate it." After Donald returned to his home in West Virginia, he used the equipment to record a telephone call with Seal on February 5, 2013. During this recorded call, Seal made multiple incriminating statements. Copeland testified at the motions hearing that she did not monitor the conversation in live time. After this phone call took place, Copeland met Donald in Frederick to retrieve the recording equipment. Copeland then downloaded the recording onto a disc after she returned to her office.
At trial in the Circuit Court for Montgomery County, the February 5 recorded telephone conversation was played for the jury over defense counsel's objection. The jury returned a guilty verdict on all counts: one count of child sexual abuse, four counts of third-degree sex offense, and six counts of second-degree sex offense. Seal was sentenced to 15 years' incarceration for child sexual abuse, 15 years consecutive for one count of second-degree sex offense, and 15 years consecutive for a second count of second-degree sex offense. Concurrent sentences were imposed for the remaining counts.
Seal appealed to the Court of Special Appeals and maintained that the Circuit Court erred in denying his motion to suppress the February 5 telephone conversation that was played for the jury at trial. In an unpublished opinion, the intermediate appellate court, in a split decision, affirmed the Circuit Court's denial of Seal's motion to suppress and upheld the conviction. The Court of Special Appeals ruled that Copeland sufficiently supervised Donald so as to make the recording a permissible interception under CJP § 10-402(c)(2). Seal timely appealed and we granted his Petition for Writ of Certiorari. Seal presented the following two questions for review:
(1)When a Maryland law enforcement officer provides a West Virginia resident with a recording device to be used at the resident's pleasure, does use of the device constitute "acting . . . under the supervision of a . . . law enforcement officer" pursuant to the Maryland Wiretap Statute?
(2)Does Maryland's wiretapping statute authorize a Maryland law enforcement officer to provide a West Virginia resident with an electronic device to be used by the West Virginia resident, two weeks later, to record telephone conversations with a Virginia resident and use those recordings in a criminal proceeding in Maryland?
We hold there was no supervision, thus answering no to the first question. We shall reverse the judgment of the Court of Special Appeals. Therefore, we need not address the ...