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Agnew v. State

Court of Appeals of Maryland

November 20, 2018

RODNEY LEE AGNEW
v.
STATE OF MARYLAND

          Argued: September 7, 2018

          Circuit Court for Montgomery County Case No. 129704C

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

          OPINION

          HOTTEN, J.

         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 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, 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 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 ...


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