Davis v. State

43 A.3d 1044, 426 Md. 211, 2012 WL 1521650, 2012 Md. LEXIS 263

• Court: Court of Appeals of Maryland
• Decided: May 2, 2012
• Docket: 59, September Term, 2011
• Status: Published

Opinions

HARRELL, J.

Montgomery County law enforcement officers, situated at a “listening post” in Montgomery County, Maryland, and operating under an ex parte order issued by a judge of the Circuit Court for Montgomery County properly under the Maryland Wiretapping and Electronic Surveillance Act, intercepted a mobile phone communication from a target mobile phone, caller, and receiver located in Virginia. Section 10 — 408(c) of the Maryland Code, Courts and Judicial Proceedings Article, permits a Maryland judge to enter an ex parte order authorizing the interception of “wire, oral, or electronic communications ... sent by a communication device anywhere within the State.” As a result of the intercepted communication, the police seized from Petitioner, Tyrone Davis (the caller), controlled dangerous substances when he returned to his Maryland residence. Petitioner moved in the Circuit Court to suppress all evidence obtained by police through the asserted illegal search and seizure, on the basis that the wiretap order did not authorize interception of the extraterritorial communication and the court issuing the order could not authorize such an interception. The hearing judge denied the motion, citing federal case law defining the location of an “interception” as where the mobile communication was first intercepted or redirected and where it was first heard by law enforcement officers. On appeal, the Court of Special Appeals affirmed the denial of the motion.

Although, in a few aspects, Maryland’s wiretapping statute is more protective of individual privacy rights than Title III of the Federal Omnibus Crime and Safe Streets Act of 1968 (“Title III”), generally the Maryland statute is an “offspring” of Title III. We have read analogous provisions in our statute to be in pari materia with Title III, as interpreted by federal courts. Because the Title III and Maryland wiretap statute definitions of “interception” are verbatim, we shall adopt here the federal gloss in determining the proper jurisdiction and scope for an ex parte wiretap order. Thus, as long as the “listening post” where the law enforcement officers first hear the intercepted communications is within the geographical jurisdiction of the court issuing the order, the interception is proper under the Maryland statute. Accordingly, we conclude that the motion to suppress evidence was denied properly by the Circuit Court for Montgomery County and, therefore, affirm the judgment of the Court of Special Appeals.

I. Factual and Legal Proceedings

The following was gleaned from the record of the suppression hearing. On 8 September 2006, the State’s Attorney for Montgomery County filed an ex parte application to intercept and record wire, oral, and electronic communications from Petitioner’s mobile cell phone. Petitioner lived in Silver Spring, Montgomery County, Maryland. The application was supported by affidavits from a Montgomery County Police Department Detective and a Special Agent for the United States Drag Enforcement Agency, who were coordinating an ongoing investigation into the distribution of controlled dangerous substances within Montgomery County. Petitioner was one of the targets of the investigation. The affidavits contained evidence, gathered pursuant to wiretaps approved previously, evincing probable cause to believe that Davis was transporting controlled dangerous substances into Maryland from outside the state. On the day the wiretap application pertinent to the present case was filed, Judge Ann Harrington of the Circuit Court issued an order approving the application. The order, on its face, allowed investigators to intercept Davis’s mobile phone communications ¹ and required T-Mobile (operator of the relevant mobile phone infrastructure) to provide position and caller identification information, without geographic limit.

On 11 September 2006, Montgomery County police (stationed at a covert location in Montgomery County) were monitoring the communications on Davis’s mobile phone and overheard a call that, based on the officers’ training and experience, indicated that Davis was approaching the Washington, D.C., area after a journey to Miami, Florida, and potentially transporting controlled dangerous substances into Maryland. Approximately one hour after the call was intercepted, two officers confronted Davis as he arrived at his residence in Montgomery County. The officers concocted a cover story, which they told Davis, that they believed that he matched the description of a suspect in a recently committed robbery and requested to search Davis, his vehicle, and a suitcase in the trunk of his car. During the search, the officers found over nine pounds of marijuana in the suitcase.² The officers did not arrest Davis at that time, purportedly to avoid disrupting the ongoing drug investigation.

On 22 October 2009, a grand jury indicted Davis for possessing marijuana on 11 September 2006, “in sufficient quantity to indicate reasonably under all circumstance an intent to distribute the controlled substance,” in violation of Maryland Code (1957, 2002 RepLVol.), Criminal Law Article, § 5-602(2). Petitioner filed a pre-trial, omnibus motion, which included a request to suppress evidence obtained through an illegal search and seizure under Maryland Rule 2-252. Judge Michael Algeo of the Circuit Court presided over the suppression motion hearing on 8 April 2010.

At the hearing, Petitioner’s trial counsel argued that the police violated Maryland Code (1957, 2006 RepLVol.) Courts & Judicial Proceedings Article, § 10-408(c)(3), by intercepting a call made from Davis’s cell phone, registered to a Virginia address, to a recipient located in Virginia, while Davis also was in Virginia when the call was placed and during the entire communication. Judge Algeo reasoned that the definition of “intercept” was the same under the Maryland wiretap statute and Title III and that the federal court’s interpretation of “intercept” in United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir.1992), that “the interception must also be considered to occur at the place where the redirected contents are first heard,” should apply in pari materia to interpretation of the parallel Maryland statute. Judge Algeo concluded that Davis’s call was “intercepted” lawfully in Montgomery County, where the investigators first heard the mobile phone conversation and, therefore, denied Petitioner’s motion to suppress the evidence seized by the police. At trial, Davis was convicted of violating Criminal Law Article, § 5-602(2) and sentenced to five years in prison.

Davis noted timely an appeal to the Court of Special Appeals. A panel of the intermediate appellate court, in Davis v. State, 199 Md.App. 273, 21 A.3d 181 (2011), affirmed. The intermediate appellate court concluded that the location of the mobile phone, the caller, or the recipient of the call were not material. The critical location in the analysis was where the “interception” occurred. Davis, 199 Md.App. at 287, 21 A.3d at 189. The panel held that

interception ... may be at either or both of two places: 1) where the suspect phone which is the subject of the interception order is located, regardless of whether that phone is sending a message or receiving a message; and 2) where the police are located as the monitor and hear the intercepted message, to wit, the location of the “listening post.” Id.

Because the Montgomery County police’s “listening post” was located within Montgomery County, Maryland, the intermediate appellate court concluded that the interception of the communication from Davis’s mobile phone, although associated physically with Virginia, was lawful. Davis, 199 Md.App. at 304, 21 A.3d at 199. Davis filed timely a petition for writ of certiorari, which we granted, Davis v. State, 421 Md. 557, 28 A.3d 644 (2011), to consider the question:

Did the Court of Special Appeals err in affirming the trial court’s decision denying Mr. Davis’s motion to suppress derivative evidence seized by Montgomery County police after the police intercepted Mr. Davis’s phone call from his Virginia phone, placed while he was in Virginia, to a Virginia phone line when the call’s recipient was also in Virginia, in violation of the Maryland Wiretapping and Electronic Surveillance Act, Md.Code Ann. Cts. & Jud. Proc. § 10-401, et seq.?

As foretold earlier in this opinion, we conclude that interception of a wire, oral, or electronic communication, for the purposes of the Maryland wiretap statute, occurs where law enforcement officers capture or redirect first the contents of the communication overheard by the wiretap and where they heard originally the communication. Therefore, as long as the “listening post” was located within the territorial jurisdiction of the court issuing the ex parte wiretap order, neither the physical location of the mobile phone at the time the call was placed and during the communication or the recipient of the call are material. Accordingly, we affirm the judgment of the Court of Special Appeals that the Circuit Court for Montgomery County denied properly Petitioner’s motion to suppress.

II. Standard of Review

When interpreting a statute, a court’s goal is “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied.... ” Ray v. State, 410 Md. 384, 404, 978 A.2d 736, 747 (2009) (quoting Barbre v. Pope, 402 Md. 157, 172, 935 A.2d 699, 708 (2008)). We approach the statutory interpretation process by looking first at the plain language of a statute, giving the words their natural and ordinary meaning. Id. (citing Barbre, 402 Md. at 172, 935 A.2d at 708). If the language is clear and unambiguous on its face, our inquiry ends ordinarily. Id. (citing Barbre, 402 Md. at 173, 935 A.2d at 708-09).

If, however, the language is ambiguous, we move on to examine the “legislative history, case law, statutory purpose, as well as the structure of the statute” to aid us in ascertaining the intent of the Legislature. Ray, 410 Md. at 405, 978 A.2d at 748 (citations omitted). When focusing on the relevant part of a statutory scheme, we attempt to harmonize the part with the whole, considering the “purpose, aim, or policy of the enacting body.” Id. (citations omitted). When interpreting an ambiguous statute, we must reject any construction that would be illogical or nonsensical. Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 302, 783 (2001) (citing State v. Brantner, 360 Md. 314, 322, 758 A.2d 84, 88-89 (2000)).

Reviewing a trial court’s disposition of a motion to suppress evidence, we view the evidence presented at the hearing, along with any reasonable inferences drawable therefrom, in a light most favorable to the prevailing party. Bailey v. State, 412 Md. 349, 363, 987 A.2d 72, 80 (2010) (citing Crosby v. State, 408 Md. 490, 504, 970 A.2d 894, 902 (2009); Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007)). The reviewing court defers to the fact-finding of the hearing court, unless the findings are clearly erroneous. Id. We apply, however, a non-deferential standard of review when making the ultimate legal determination as to whether the evidence was seized properly under the Fourth Amendment. Williamson v. State, 413 Md. 521, 532, 993 A.2d 626, 632 (2010).

III. Discussion

In 1968, Congress enacted Title III, which provided minimum standards for the interception of oral, wire, and electronic communications during criminal investigations and prosecution. Mustafa v. State, 323 Md. 65, 69, 591 A.2d 481, 483 (1991). Title III was intended to balance privacy concerns and the public interest in effective criminal prosecutions. Id. (citing, among others, United States v. Kahn, 415 U.S. 143, 151, 94 S.Ct. 977, 982, 39 L.Ed.2d 225, 235 (1974)). Each state was required to enact a responsive statute that was at least as protective of private citizens’ rights as Title III. Id. (citing State v. Siegel, 266 Md. 256, 271, 292 A.2d 86, 94 (1972)). In 1977, the Maryland Legislature responded by enacting the Wiretapping and Electronic Surveillance Law. 1977 Md. Laws 693. The Maryland wiretap statutory scheme begins with a general prohibition on intercepting willfully, endeavoring to intercept, or procuring “any other person to intercept or endeavor to intercept, any wire, oral or electronic communication.” Cts. & Jud. Proc., § 10-402(a)(l). Intercept means “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Cts. & Jud. Proc., § 10-401(3).³

An exception to the general prohibition on interception was created to enable law enforcement investigators to capture evidence of certain enumerated crimes, including dealing in a controlled dangerous substance. Cts. & Jud. Proc., § 10-402(c)(2)(ii)(l)(L). In order to obtain evidence of the enumerated crimes, the “Attorney General, a State Prosecutor, or a State’s Attorney may apply to a judge of competent jurisdiction, and the judge, in accordance with the provisions of § 10-408 ..., may grant an order authorizing the interception of wire, oral, or electronic communications.... ” Cts. & Jud. Proc., § 10^06(a).

To obtain an ex parte order authorizing a wiretap, a law enforcement officer must provide a judge (of competent jurisdiction) with a written application, upon oath or affirmation, that includes a “full and complete statement of facts” justifying the order, including: details about the offense that is being, or will be, committed; a particular description of the communication to be intercepted; a description of previous failed investigative procedures or an explanation as to why they are too dangerous to be used; the time period for interception; and a list of previous wiretap applications. Cts. & Jud. Proc., § 10 — 408(a)(l)(i)—(v). A judge may enter an ex parte order, upon receipt of the application, authorizing

interception of wire, oral, or electronic communications within the territorial jurisdiction permitted under paragraphs (2) and (3) of this subsection, if the judge determines (i) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 10-406 of this subtitle; (ii) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception; (iii) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;.... Cts. & Jud. Proc., § 10 — 408(c)(1) (emphasis added).

An ex parte order “may authorize the interception of wire, oral, or electronic communications only within the territorial jurisdiction of the court in which the application was filed.” Cts. & Jud. Proc., § 10-408(c)(2) (emphasis added). Section § 10-408(c)(3) expands on the physical jurisdiction aspect of the wiretap providing that an order may

authorize the interception of communications received or sent by a communication device anywhere within the State so as to permit the interception of the communications regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed at the time of the interception. The application must allege that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed. (Emphasis added.).

The provisions of § 10-408(c) relating to jurisdiction are the crux of the present case. Petitioner maintains that § 10-408(c)(3) allows Maryland law enforcement officers, operating under an ex parte order issued by a Maryland circuit court judge, to intercept communications only when the target “electronic, mechanical, or other device” is located within Maryland. Petitioner and his cell phone were located in Virginia when he initiated a call to a person, also situated in Virginia, and the Montgomery County Police intercepted the message pertinent to this case. Therefore, Petitioner contends the plain language of § 10-408(c)(3) renders the interception unlawful. Respondent, on the other hand, points us to assertedly relevant federal case law that holds that, so long as the interception of the mobile communication occurs within the geographical jurisdiction of the court that issued the order, the interception is valid. After a careful reading of the statute and the overall scheme, we conclude that the language of § 10-408(c) is subject to more than one reasonable interpretation, and, therefore, we must look to the relevant legislative history to ascertain the intent of the Legislature.

Section 10-408(c) was added to the Maryland wiretap statute in 1991. 1991 Md. Laws 285. The amendment was added to account for the development of cellular phone technology.⁴ Floor Report, S.B. 153 (1991). Prior to 1991, an ex parte order for the interception of wire, oral, or electronic communications could be issued only for communications within the jurisdiction of a particular circuit court. Id. The new section obviated the need for law enforcement agents to obtain multiple ex parte orders for each jurisdiction where a mobile phone might be located and allowed them to apply for one ex parte order in the jurisdiction where the “base station” was located. Id. During a hearing on Senate Bill 153, the bill sponsor (Senator Murphy) emphasized the burden of multiple wiretap applications on law enforcement and the potential advantage this provided to drug traffickers by allowing them to “weav[e] in and out of counties and across one jurisdictional boundary after another within the state.” Hearing Before the Judicial Proceedings Committee (30 Jan. 1991). This section of the wiretap statute was “intended to allow the law to keep pace with current technology.” Bill Analysis, S.B. 153 (1991).

In 1993, the words “or a paging device” were added, following the phrase “a mobile phone,” in § 10-408(c). 1993 Md. Laws 598. Later, in response to our holdings in Perry v. State, 357 Md. 37, 741 A.2d 1162 (1999), and Mustafa, 323 Md. at 65, 591 A.2d at 481, which held that communications intercepted in another state are inadmissible at trial if they would violate the Maryland wiretap statute had they been intercepted in Maryland, the Legislature added a provision to the statute allowing certain out-of-state interceptions. 2001 Md. Laws 370. The words “a mobile phone or a paging device” were replaced with “communication device” by the Maryland Security Protection Act of 2002. 2002 Md. Laws, ch. 100. This Act added also the phrase “within the state having jurisdiction over the offense under investigation” to the definition of “judge of competent jurisdiction” in § 10-401(8). 2002 Md. Laws, ch. 100. Section 10-408(e)(4) was added also by the Security Protection Act of 2002, allowing a judge of competent jurisdiction to “authorize continued interception within the State, both within and outside the judge’s jurisdiction, if the original interception occurred within the judge’s jurisdiction.” Although none of the legislative history speaks directly to the interception of communications emanating from an out-of-state source, it is clear that the statute has been evolving steadily, trying to keep pace with emerging technology-

In addition to this legislative history, relevant federal and state court opinions provide a persuasive approach for interpreting § 10-408 and applying it to the facts developed at the suppression hearing in the present case. As we have noted previously, Maryland’s wiretap statutory scheme is an “offspring” of Title III. State v. Bailey, 289 Md. 143, 151, 422 A.2d 1021, 1026 (1980), superceded by statute on other grounds in McNeil v. State, 112 Md.App. 434, 685 A.2d 839 (1996); see also Adams v. State, 289 Md. 221, 223, 424 A.2d 344, 345 (1981) (stating that “Maryland’s Wiretapping and Electronic Surveillance Law ... tracks extensively Title III ...”). Notwithstanding that, in some areas, Maryland’s statute provides greater protections against wiretapping than does the federal scheme. Miles v. State, 365 Md. 488, 509, 781 A.2d 787, 799 (2001) (noting that Maryland law requires two-party consent versus one-party consent required under federal law). Despite these differences, “it is clear through both legislative history and case precedent that the federal wiretap statute ... served as the guiding light for the Maryland Act[; therefore, we read the acts in pari materia....” Fearnow v. Chesapeake & Potomac Tel. Co. of Md., 104 Md.App. 1, 32, 655 A.2d 1, 32 (1995), rev’d on other grounds, 342 Md. 363, 676 A.2d 65 (1996). Because of the similarities, we look to apt federal courts cases for persuasive guidance interpreting analogous provisions of the Maryland statute. Adams v. State, 43 Md.App. 528, 531, 406 A.2d 637, 639 (1979) (noting that both federal and state statutes define the terms “intercept” and “electronic, mechanical, or other device” with the same language), aff'd, 289 Md. 221, 424 A.2d 344 (1980).

The provision in Title III analogous to § 10-408(c)(3) provides, in relevant part:

Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction), if the judge determines on the basis of the facts submitted by the applicant that—

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter [18 USCS § 2516];

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous ... 18 U.S.C. § 2518(3) (2011) (emphasis added).

The seminal federal case addressing where “interception” of a telephone call occurs under Title III is United States v. Rodriguez, 968 F.2d 130 (2d Cir.1992). In Rodriguez, the defendants were convicted, in the U.S. District Court for the Southern District of New York, of various charges relating to an ongoing crack-cocaine manufacturing and distribution ring, based, in part, on evidence gathered from a wiretap of a New Jersey phone. 968 F.2d at 134-35. At trial, defendants made a motion to suppress the wiretap evidence; the motion was denied. Id. On appeal, a new trial was sought because assertedly the Southern District of New York court did not have jurisdiction to authorize wiretaps on New Jersey phones and, therefore, the wiretap obtained illegally the evidence. Rodriguez, 968 F.2d at 135. As discussed supra, Title III authorizes a judge to intercept wire, oral, or electronic communications “within the territorial jurisdiction of the court in which the judge is sitting.” Id. The appellate court in Rodrigv&z concluded that because the definition of interception included the “aural” acquisition of the contents of the call, the interception occurs where the contents of the wiretap were captured or redirected originally, as well as “the place where the redirected contents are first heard.” 968 F.2d at 136. The listening post, where the calls were first heard by law enforcement agents, was located in Manhattan, New York, within the federal Southern District of New York; therefore, the appellate court determined that the admission of the wiretap evidence at trial was proper. Rodriguez, 968 F.2d at 135.

Other federal courts followed the Rodriguez approach in determining challenges to the propriety of the jurisdiction of the issuing court by focusing on where the “interception” occurred or, alternatively, by looking to where the calling or receiving phones were located. See United States v. Denman, 100 F.3d 399, 403 (5th Cir.1996) (concluding that because “interception includes both the location of a tapped telephone and the original listening post,” the trial court allowed properly evidence from a wiretap of a phone located in the Southern District of Texas where the listening post was located in the Eastern District of Texas and the wiretap order was issued by the United States District Court for the Eastern District of Texas); United States v. Ramirez, 112 F.3d 849, 851-53 (7th Cir.1997) (upholding a wiretap order from the United States District Court in the Western District of Wisconsin where the listening post and tapped mobile phone were located in Minnesota, but the target of the investigation and the receiving phone were located in the Western District of Wisconsin); United States v. Luong, 471 F.3d 1107, 1110 (9th Cir.2006) (affirming the trial court’s admission of evidence gathered under a wiretap order issued by the United States District Court for the Northern District of California where the mobile phone had an area code, billing address, and mobile service provider associated with the Eastern District of California, because the wiretapped communications were first heard at a listening post in San Francisco, within the Northern District of California); United States v. North, 2011 WL 653864, *4, 2010 U.S. Dist. LEXIS 141337, *13 (S.D.Miss.2011) (concluding that “[territorial jurisdiction is tied to the place of interception,” rather than the location where the investigation of criminal activity is occurring); United States v. Burford, 755 F.Supp. 607, 611 (S.D.N.Y.1991) (stating that the relevant inquiry for determining jurisdiction is where the interception occurs and in this case, although the phone was tapped in Maryland, the calls were routed to a government “wire room” in the Southern District of New York, where the wiretap order has issued).

State statutes similar to Title III have been interpreted consistently, relying on Rodriguez. See United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir.1994) (defining “interception” under the Oklahoma Security of Communication Act as “the place where the contents of the communication are first heard by law enforcement officials,” in accordance with federal court interpretations of the similarly worded Title III provision); State v. McCormick, 719 So.2d 1220, 1222 (Fla.App.1998) (rejecting a trial court’s interpretation of the Florida wiretap statute that a Melbourne Police officer did not have jurisdiction to apply for and act on a wiretap order regarding mobile phone communications outside of Brevard County, Florida, because the “ ‘interception’ of a cellular call occurs both at the location of the tapped telephone and at the site where law enforcement authorities hear and record the call”); Kadoranian v. Bellingham Police Dep’t, 119 Wash.2d 178, 829 P.2d 1061, 1065 (1992) (concluding that interceptions “occur where made” and that the Washington Privacy statute allows wiretapping of communications made during calls to recipients outside of the state); but see Castillo v. State, 810 S.W.2d 180, 183 (Tex.Crim.App.1990) (concluding that the language of the Texas wiretap statute stating that “only the judge of competent jurisdiction for the administrative judicial district in which the proposed interception will be made may act on an application,” established territorial restrictions and, therefore, “interception” occurred where the wiretap was placed physically).

Petitioner maintains that none of the federal and state cases addresses the issue of interception of a wholly extraterritorial communication and the result in each case, discussed supra, and, moreover, were rooted in the national umbrella of federal court jurisdiction, vice states and state jurisdiction over its counties and municipalities. Recently, however, the United States District Court for the Southern District of California addressed the question of interception of wholly extraterritorial mobile communications in United States v. Cosme, 2011 WL 3740337, 2011 U.S. Dist. LEXIS 94742 (S.D.Cal.2011). In Cosme, defendants, members of something called the Fernando Sanchez Organization (“FSO”), were indicted by a grand jury for conspiring to conduct a pattern of racketeering activity and conspiring to distribute cocaine, marijuana, and methamphetamine. 2011 WL 3740337, at *1, 2011 U.S. Dist. LEXIS 94742, at *7-8. The indictment was supported by evidence gained through electronic surveillance of telephones used by defendants and co-conspirators. Cosme, 2011 WL 3740337, at *1, 2011 U.S. Dist. LEXIS 94742, at *8. The wiretap application was made by an Assistant United States Attorney to the United States District Court for the Southern District of California and was supported by allegations of an FBI agent investigating the drug trafficking and associated violent activities of FSO from Mexico into the San Diego area. Cosme, 2011 WL 3740337, at *1-2, 2011 U.S. Dist. LEXIS 94742, at *8-9. One defendant, joined by others, filed a motion to suppress evidence derived from wiretaps because they exceeded allegedly the jurisdiction of the authorizing court under Title III. Cosme, 2011 WL 3740337, at *8, 2011 U.S. Dist. LEXIS 94742, at *27. The FBI intercepted a defendant’s communication “while he was using a cellular phone in Mexico to communicate with others located in Mexico for the entire duration of the conversation.” Cosme, 2011 WL 3740337, at *8, 2011 U.S. Dist. LEXIS 94742, at *27.

The defendant argued that Title III did not authorize interception of communications initiated and received entirely within another country. Cosme, 2011 WL 3740337, at *8, 2011 U.S. Dist. LEXIS 94742, at *28. The government conceded that Title III did not allow a court to authorize a wiretap in Mexico, but countered that no language in Title III “suggests that Congress limited the ability of a judge to authorize the interception of only those conversations which occur solely in the United States.” Cosme, 2011 WL 3740337, at *8-9, 2011 U.S. Dist. LEXIS 94742, at *29. Relying on the definitions of “interception” in Luong, the District Court concluded that the record established conclusively that the intercepted communications were heard only by law enforcement officials in a “wire room” located within the Southern District of California and, therefore, all of the communications were “intercepted” within the jurisdiction of the court that issued the wiretap order. Cosme, 2011 WL 3740337, at *9-10, 2011 U.S. Dist. LEXIS 94742, at *32-33. The court noted that drug traffickers and violent offenders “are not exempted from the valid wiretap order by making their plans across the border” and denied the motion to suppress evidence obtained from the wiretap. Cosme, 2011 WL 3740337, at *10, 22-23, 2011 U.S. Dist. LEXIS 94742, at *33, 69.

Petitioner urges us to construe the phase “anywhere within the state” in § 10-408(c)(3) of the Maryland statute as modifying “a communication device.” This narrow reading would require Maryland-based law enforcement officers, operating under an otherwise valid ex parte wiretap order, to shut down interception of mobile phone communications when the target phone enters another state or the District of Columbia. This would present an enormous logistical and technological challenge to law enforcement operators and, in cases where the subject of an investigation crosses back and forth over state or other boundary lines (as in a drug distribution operation in Montgomery County and/or the District of Columbia), the task may be impossible.⁵ But this challenging burden alone does not shape our decision in this case. Rather, the legislative history of the Maryland wiretap statute and analogous federal case law lead us to a different result than that urged by Petitioner.⁶

The widespread use and highly mobile nature of cellular phones, especially in the circumstances of drug distribution rings, presents a unique challenge for courts in determining the proper jurisdiction for acting on applications for ex parte wiretap orders. We must determine what the Legislature was trying to regulate. We do so by looking at the entirety of the wiretap statute. The target of the statute is “interception”; therefore, critical to our interpretation of § 10-408(c) is the definition of “interception.” Under § 10-401(3), the definition of interception is “the aural or other acquisition of the contents of any wire, electronic, or oral communication.... ” The common and generally most understood meaning of “aural” is “of or relating to the ear or to the sense of hearing.” Webster’s Ninth New Collegiate Dictionary 116 (1989). Because “interception” is the tipping point of the statute, it provides naturally the jurisdictional anchor for an ex parte order authorizing law enforcement officers to intercept wire, oral, or electronic communications. Where “interception” occurs and, therefore, where jurisdiction is conferred, has been addressed by numerous federal courts, discussed supra. Because Maryland’s wiretap statute defines “interception” to include aural acquisition of communication in the same way that Title III defines the term; we accept and apply the rationale employed in Rodriguez (followed by other courts), that interception occurs where the communications were first captured or redirected, as well as where they were first heard by law enforcement agencies.

The Cosme case, decided recently, involved an analogous circumstance to the case at hand. There, the United States District Court for the Southern District of California expanded the analysis undertaken initially in Rodriguez, and later in Luong, that the location of “interception” is the jurisdictional focus for a wiretap order, despite the fact that a mobile phone conversation was initiated and received within Mexico entirely. Thus, Cosme makes clear that the location of interception is the essential element of jurisdiction, rather than the notion of a national umbrella federal jurisdiction (when federal courts are concerned) being the animating force for the results reached under the Title III cases. Nevertheless, an ex parte order may be issued by a Maryland circuit court only if the application alleges “that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed.” Cts. & Jud. Proc., § 10-408(c)(3). Establishing the location of the alleged criminal activity under investigation places a necessary and reasonable constraint on applicants for ex parte wiretap orders.

Petitioner maintains that the wording of § 10-408(c)(3) restricts interception to communication devices only when they are located within Maryland. This interpretation is not in accordance with the intent of the Legislature. When the legislature added § 10-408(c)(3) to the statutory scheme, in addition to the geographically restrictive clause “within the State,” the phrase “so as to permit the interception of the communications regardless of whether the mobile telephone is located physically within the jurisdiction of the court in which the application was filed ...” was added. The purpose of this phrase was to broaden a circuit court’s authority and the effectiveness of law enforcement investigators wiretapping mobile phones, without losing continuity due to jurisdictional constraints. This interpretation is supported by the legislative history of § 10 — 401(3)(c), which was designed to enhance the authority of judges issuing ex parte wiretap orders, rather than restricting their authority. In 1991, the sponsor of Senate Bill 193, which became eventually § 10 — 401(3)(c), testified that in “the midst of a drug epidemic,” drug traffickers were exploiting the jurisdictional restrictions of the current wiretap laws which tied “the hands of police trying to apprehend drug traffickers and put them in prison.” ⁷

In the present case, the ex parte order was issued by the Circuit Court for Montgomery County, the county where the alleged drug distribution activities were occurring. The “listening post,” where law enforcement officers first heard the communications intercepted from Petitioner’s mobile phone, was located in a covert facility within Montgomery County. Although the Petitioner was situated in Virginia when he placed the call in question that facilitated the seizure of the marijuana and his ultimate arrest, and his call was received by a person also in Virginia, the communication was intercepted aurally by police detectives monitoring the “listening post” in Montgomery County. Therefore, the interception was lawful and the denial of the motion to suppress proper.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.

BELL, C.J., and GREENE, J. dissent.

1 . The order gave authority to intercept “telephonic communications, short message service text messaging, caller identification information, electronic photographs, electronic video, precise positioning information, and cellular tower location data ...” associated with the mobile phone number 757-3 5 8-15XX. The phone was registered to Petitioner at a Hampton, Virginia, address.

2 . It is undisputed that Davis consented to the search of his person and vehicle; however, Davis maintained at the motion hearing that he did not consent to the search of the suitcase, where the drugs were found. Davis did not dispute that the suitcase belonged to him.

3 . "Intercept” is defined identically in Title III. 18 U.S.C. § 2510(4) (2011).

4 . The type of cellular phones in use at the time of the amendment of the statute were car phones, rather than the ubiquitous portable mobile phones carried by most of society today.

5 . It is impossible to know in advance of intercepting a mobile phone communication where the call will be initiated or the situs of the recipient of the call. Even while the phone call is unfolding, determination of the precise, real-time location of the phone may be very difficult. Clifford S. Fishman & Anne T. McKenna, Wiretapping & Eavesdropping: Surveillance in the Internet Age § 2:70, at 2-117 (3d ed.2008).

6 . Respondent advances also the "rule of the last antecedent” as a basis for interpreting the phrase "anywhere in the State” as modifying "interception,” rather than “communication device.” See Sullivan v. Dixon, 280 Md. 444, 451, 373 A.2d 1245, 1249 (1977) (citing Southerland, Statutes and Statutory Construction, § 47.33 (4th ed. C. Sands 1973)) (recognizing generally a rule of statutory construction "that a qualifying clause ordinarily is confined to the immediately preceding word or phrase”). We decline Respondent's invitation. Statutory interpretation should not be guided simply by the application of fixed and immutable canons or rules, rather it should be also "a matter of analysis and judgment in each case.” Melvin J. Sykes, A Modest Proposal for a Change in Maryland’s Statutes Quo, 43 Md. L.Rev. 647, 666 (1984).

7 . We rely on the testimony of the bill sponsor in determining the legislative intent; especially where there were minimal amendments to the bill introduced after that testimony. Jack Schwartz & Amanda Stakem Conn, The Court of Appeals at the Cocktail Party: The Use and Misuse of Legislative History, 54 Md. L.Rev. 432, 445-46, 462 (1995) (stating that "sponsor testimony ... [is] likely to be especially reliable evidence of the purpose or goal underlying a statute [and, i]f a bill goes through the legislative process essentially unchanged, the court should give significant weight to the views of the sponsor”).