Spease and Ross v. State

338 A.2d 284, 275 Md. 88

• Court: Court of Appeals of Maryland
• Decided: June 27, 1975
• Docket: [No. 120, September Term, 1974.]
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Eldridge, J., dissents and filed a dissenting opinion at page 110 infra.

Charged in the Circuit Court for Prince' George’s County with conspiracy to distribute cocaine, Clifton Spease and Willie Ross filed an oral motion prior to trial to suppress incriminating evidence obtained through a court-authorized telephone wiretap; they contended that the State had violated the terms of the court’s wiretap order and the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Chapter 119, 18 U.S.C. §§ 2510-2520, by not minimizing the interception of communications as required by § 2518(5) and in failing to serve the requisite inventories required by § 2518(8)(d). The trial court denied the oral motion to suppress after an evidentiary hearing. At a jury trial which subsequently ensued, the incriminating evidence obtained through the wiretap was admitted and Spease and Ross were convicted. On appeal, the Court of Special Appeals found no merit in the contention that the trial court erred in denying the motion to suppress. Spease and Ross v. State, 21 Md. App. 269, 319 A. 2d 560 (1974). We granted certiorari to determine whether the Court of Special Appeals was correct in so concluding.

Section 2518(5) requires that every order or extension of an order authorizing the interception of wire or oral communications

“shall contain a provision that the authorization to intercept... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter ....”

Section 2518(8)(d) directs that within a certain specified time, the judge issuing or denying authorization to intercept

“shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of —

(1) the fact of the entry of the order or the application;

(2) the date of the entry and the period of authorized, approved or disapproved interception¡ or the denial of the application; and

(3) the fact that during the period wire or oral communications were or were not intercepted.”

Section 2518(10)(a) provides:

“Any aggrieved person [as defined in § 2510] . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that —

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

... If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. . ..”

The wiretap order in this case was issued in conformity with Title III and Maryland Code (1971 Repl. Vol.) Art. 35, § 94.¹ See State v. Siegel, 266 Md. 256, 292 A. 2d 86 (1972). That probable cause was shown by the State for issuance of the order was not contested. The material facts underlying issuance of the order are not in dispute and were succinctly outlined in the opinion of the Court of Special Appeals (Moylan, J.), as follows:

“The wiretap order now under review was issued by Judge Ernest A. Loveless, Jr., on December 8, 1971. The probable cause therefor was contained in the affidavit of Detective Snow. The probable cause began accumulating on April 8, 1971, and continued to accumulate over the ensuing eight months. It was learned that Ross, who lived at 7404 Walker Mill Road in the District Heights area of Prince George’s County, was a major dealer for the heroin which permeated the Fairmont Heights section of that county. He was the wholesale supplier for Daniel Deal, Shandy Richardson, Jr., Artemus Logan and James Arnett. Throughout the spring of 1971, Ross’s modus operandi was for his retailers to come to his apartment at 7404 Walker Mill Road to purchase their uncut heroin in wholesale quantities. They would then and there ‘cut’ or dilute the drugs for eventual resale. A discreet surveillance put both the appellant Ross and Daniel Deal together at that address on May 3,1971.

“Ross’s 1967 Cadillac was also observed parked on occasion at the intersection of 61st Street and Eastern Avenue in Fairmont Heights, an intersection frequently used by drug users as a distribution point. The community there is known as ‘Junky Hill’.

“Information coming in from the Narcotics Squad of the Washington Metropolitan Police revealed that Ross had sold $900 worth of heroin to a government undercover agent on May 15, 1971, from an address at 7282 79th Avenue in Landover, Prince George’s County. A second sale of $500 worth of heroin was made to the same undercover agent on June 5, 1971. This second sale was made from a 1969 Buick, with District of Columbia personalized tags TJS, which Buick had been observed three days earlier, on June 2, 1971, parked in front of Ross’s apartment. The heroin obtained on both May 15 and June 5 was chemically analyzed to be 9.1% pure, a quality of definitely wholesale strength. Street heroin almost universally tested out to be of a strength of 2% or less. On July 13, 1971, the undercover agent who had made'the purchases of May 15 and June 5 was shot.

“Detective Snow arrested Ross on July 13, 1971, on two charges of distribution of heroin to the undercover agent. Detective Snow confirmed Ross’s address as of that time as 7404 Walker Mill Road.

“On November 17, 1971, Detective Snow learned reliably that Ross was still dealing heavily in both heroin and cocaine. As a result of the July 13 arrest, however, Ross had radically changed his modus operandi. He was apprehensive of police interference and no longer kept the drugs at his home. A prospective purchaser would have to telephone Ross at home. Ross would then direct the purchaser to go to a specified location. Ross wou-ld then call a third person to meet him and the purchaser at that location. The third person would bring the drugs from its rotating ‘stash’. The designated meeting places would generally be a motel or a location in Palmer Park, Maryland. Discreet surveillance had picked up the appellant Ross, the appellant Spease, one Gloria Holmes and an unknown fourth person at the Howard Johnson’s Motel in Cheverly on October 3. Gloria Holmes was a known addict. Police records revealed that narcotics complaints had been lodged against Spease. A records check with the Howard Johnson’s Motel revealed that Ross had been a frequent guest there.

“It was established that Ross, post-July 13, would sell drugs only to retail dealers and only in wholesale quantities. He would have no contact with ultimate users. The drugs sold would be of an unadulterated, higher quality and the sales usually involved sums of money in excess of $500. Ross would deal only with persons known to him. Automobile surveillance turned out to be unavailing. Ross regularly used evasive driving techniques — driving around the block several times watching in his rear-view mirror, making unexpected U-turns in the middle of little-traveled streets. To discourage even neighborhood surveillance, Ross had installed a closed circuit television camera mounted on a house across the street, focused on his own apartment with a monitor inside the apartment. After the modus operandi changed on July 13, even Detective Snow’s highly credible confidential source was cut off from direct contact with Ross. The entire operation had gone telephonic.” 21 Md. App. at 272-74, 319 A. 2d at 562-63.

Finding from Detective Snow’s affidavit that there was probable cause to believe that “Willie Ross and other unknown persons are conspiring to violate and are violating the law with respect to controlled dangerous substances,” and that- Ross’s home telephone was being used in connection with the conspiracy, the court authorized placement of the wiretap, and interception of communications, “during all hours of the day and night” from 4:00 p.m. on December 10, 1971, until December 24, 1971, at 8:30 p.m. The court’s order specified that the telephone communications to be intercepted would be between Ross and his suppliers, and Ross and his buyers, and would relate to the delivery to Ross by his suppliers, and the delivery by Ross to his buyers of illegal narcotic drugs. The order directed that the wiretap authorization would not automatically terminate “when the type of communications described above have first been obtained, but should continue until communications are intercepted which reveal the details of the scheme which has been used by Willie Ross and others as yet unknown to receive, counsel, buy and sell illegal narcotic drugs, and the entirety of his confederates, and places of operation and the manner of the conspiracy involved therein or for a period of fifteen days from the date of this Order, whichever is earlier.” In compliance with 18 U.S.C. § 2518(5), the court’s order provided that the wiretap “be conducted in such a way as to minimize the interception of communication not otherwise subject to interception.” In accordance with the requirements of 18 U.S.C. § 2518(8)(d), the court’s order directed

“that within a reasonable time, but not later than ninety (90) days after the termination of the Order entered herein there shall be served, on the persons named in the Order, and such other parties to intercepted communications as the court may determine in its discretion that is in the interest of justice, an inventory which shall include notice of:

(a) the fact of the entry of the Order

(b) the date of the entry and the period of authorized approved interception

(c) the fact that during the period wire or oral communications were or were not intercepted.”

The order also directed that the State’s Attorney provide reports to the court every fifth day during the period of the authorized wiretap showing “what progress has been made towards achieving the authorized objective and the need for continued interception.”

I

At the hearing on the oral motion to suppress the incriminating evidence obtained through the court-authorized wiretap, Spease and Ross (hereinafter referred to as petitioners) called Detective Snow as their witness for the purpose of showing that the provisions of the court’s order and of Title ill requiring the minimization of interceptions had not been satisfied. Evidence was adduced showing that connected to the monitoring device were a tape recorder and a voice activator which would activate the recorder whenever Ross’s telephone receiver was picked up. Snow testified that all calls were monitored in their entirety, but that “once a call was determined it was a personal call, and clearly personal, then the tape recording was cut off.” Snow indicated that he had a record of all such personal calls where the tape recorder had been cut off and could “count them up” but the petitioners did not ask that he do so. Snow testified that no conversations between Ross and any attorney, clergyman, psychiatrist, or medical doctor were intercepted. Snow said that he paid no attention to conversations between Ross’s children and other children, and cut off the recorder in instances involving personal calls made by Ross. Snow testified that during the course of monitoring Ross’s home phone the parties talked through use of a code and that, as a result, he and his assistants listened to all calls. He explained:

“Because when a drug code is used or replacement words are used for an actual narcotic, it only takes one word or two words to throw into a conversation where we would know that it was a drug conversation or drug related.”

In affirming the trial court’s denial of petitioners’ motion to suppress for failure to minimize interceptions, the Court of Special Appeals noted that the evidence produced at the suppression hearing was “skimpy” as to the usual use made of Ross’s home telephone; that no evidence was adduced to establish what adults, if any, other than Ross, resided in his home and what use they might typically make of the phone; that no evidence was adduced to show the number of children residing in Ross’s home or their normal use of the phone; and that no evidence was adduced bearing on Ross’s telephone habits in general or his specific use of the telephone during the period of the interception for non-criminal purposes.²

The Court of Special Appeals concluded that the State had not failed to minimize the interception of communications in violation of the court’s order and § 2518(5). It said:

“We believe that the turning off of the tape recorder on clearly non-criminal conversations and the essential ‘tuning out’ on the children’s conversations represent a bona fide attempt at as much minimization as the investigative problem would allow. There was no evidence that conversations between adults other than Ross were ever intercepted. We are persuaded that the degree of vigilance here employed, in dealing with a cautious and chary operative involved in a subtle and widespread conspiracy, was not unreasonable.”

In support of its holding, the Court of Special Appeals relied upon a number of cases including United States v. LaGorga, 336 F. Supp. 190 (W.D. Pa. 1971); United States v. Bynum, 360 F. Supp. 400 (S.D. N.Y. 1973); and United States v. Cox, 462 F. 2d 1293 (8th Cir. 1972). It noted what the court said in LaGorga, at 196:

“[I]t is often impossible to determine that a particular telephone conversation would be irrelevant and harmless until it has been terminated. It is certainly not unusual for two individuals using the telephone to discuss social matters or items of general interest before getting to the precise point which is to be covered in the call. Similarly, when a call is made to a residence, the telephone is often answered by a young child who will turn it over to one of the adult members of the household at some point in the conversation. It is also rather common that a telephone conversation initially between two children will later develop into a discussion between adults.”

“It is all well and good to say, after the fact, that certain conversations were irrelevant and should have been terminated. However, the monitoring agents are not gifted with prescience and cannot be expected to know in advance what direction the conversation will take. It is also true that, during the early part of the surveillance, it was necessary for the agents to familiarize themselves with the voices of those who were working with the defendants.”

In Bynum, the court observed, at 410:

“Even the fact that 100% of the calls made or received during the limited period of surveillance were intercepted, if this were established, though significant, should not be overestimated. The determination of whether minimization was achieved in a particular case requires close scrutiny of, inter alia, the type of criminal enterprise being investigated; the scope of that enterprise and the niimber of participants, known and unknown, involved therein; the number of days for which electronic surveillance is conducted; [and] the scope of the authorizing order.”

In Cox, the court said, at 1300-1301:

“Accordingly, where, as here, the investigation is of an organized criminal conspiracy conversing in a colloquial code, surveillance of most of the telephone calls made during several days does not constitute a failure to minimize simply because in retrospect it can be seen that a substantial portion of them had no evidentiary or investigative value.”

The petitioners contend that the police completely disregarded the mandate to minimize interception of communications because they monitored all telephone calls made over Ross’s home phone in their entirety between December 10 and December 24. They claim that efforts to minimize must be reasonable; that turning the tape recorder off on personal calls did not amount to minimization of interceptions as the “interception” of communications regulated by Title III refers to listening to, monitoring or hearing such communications, either at the time they occur or at a subsequent time through the use of a playback recorder; that even if some personal calls were not recorded, and even if there was a “tuning out” on the children’s conversations, there was nevertheless an “interception” of every telephone call in its entirety during the life of the wiretap order; and that the value of the evidence obtained (one incriminating phone conversation) was minimal in relation to the number of calls intercepted.

The standard for compliance with the requirement to minimize is the overall reasonableness of the totality of the conduct of the monitoring agents in light of the purpose of the wiretap and the information available to the agents at the time of interception. See United States v. Scott, 504 F. 2d 194, 198 (D.C. Cir. 1974), rev’g 331 F. Supp. 233 (D.D.C. 1970). The congressional reports accompanying the wiretap statute and decisions interpreting § 2518(5) make it plain that the minimization standard, like the standards traditionally applied to the determination of probable cause, is one of reasonableness which must be ascertained from the facts and circumstances of each particular case. United States v. James, 494 F. 2d 1007, 1018 (D.C. Cir. 1974). Otherwise stated, the provisions and history of Title III, read together, indicate that the minimization requirement of § 2518(5) is nothing more than a congressional command to limit surveillance as much as possible in the circumstances, i.e., the minimization question must be considered on a case-by-case basis. United States v. Cox, supra, 462 F. 2d at 1300. See also Senate Report No. 1097, 90th Cong., 2d Sess., U. S. Code Cong. & Admin. News, 2116, 2190 (1968). It has been held that the minimization requirement is satisfied if on the whole the monitoring agents have shown a high regard for the right of privacy and have done all they reasonably could to avoid unnecessary intrusion. United States v. Tortorello, 480 F. 2d 764 (2nd Cir. 1973). The reasonableness of the conduct of the monitoring agents at the time of the interception and their good faith are determining considerations. United States v. James, supra; United States v. Manfredi, 488 F. 2d 588 (2nd Cir. 1973). Thus, interception of virtually all conversations may violate the minimization requirement in a particular factual setting, see United States v. King, 335 F. Supp. 523 (S.D. Cal. 1971), rev’d on other grounds, 478 F. 2d 494 (9th Cir. 1973), but may be justified in other circumstances, as in United States v. Bynum, 485 F. 2d 490 (2nd Cir. 1973), vacated on other grounds and remanded, 417 U. S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209 (1974); United States v. Manfredi, supra; and United States v. Cox, supra, where it has been held, in effect, that the mere fact that every conversation is monitored does not necessarily render the surveillance violative of the minimization requirements of the statute. Of course, that many intercepted calls were innocent in retrospect does not imply failure to minimize, anymore than failure to succeed at minimization constitutes failure to minimize. United States v. Scott, supra.

A synthesis of the numerous court decisions dealing with the minimization requirement suggests that there are a number of factors which aid courts in determining the reasonableness of an interception. These include: (1) the nature and scope of the crime being investigated; (2) the sophistication of those under suspicion and their efforts to avoid surveillance through such devices as coded conversations; (3) the location and the operation of the subject telephone; (4) government expectation of the contents of the call; '(5) the extent of judicial supervision; (6) the duration of the wiretap; (7) the purpose of the wiretap; (8) the length of the calls monitored; (9) the existence of a pattern of pertinent calls, which the monitoring agents could discern so as to eliminate the interception of non-pertinent calls; (10) the absence of monitoring of privileged conversations.

The record made by the petitioners on the minimization question at the suppression hearing was, as they admit, “woefully weak or silent” on the following points: (a) scope of enterprise and number of participants; (b) activity on the phones being monitored; (c) number of calls; (d) number of calls monitored; (e) length of calls; (f) participants in calls; (g) experience of agents deployed for investigation; and (h) the supervision of the interception by the investigating agency, supervising attorney and authorizing court. While the inclusion of such pertinent information in the record undoubtedly would have permitted a more informed determination of the merits of the minimization issue, that fact alone does not provide sufficient reason to remand the case for a further evidentiary hearing, as petitioners suggest. We thus shall consider the issue on the evidentiary record made by the petitioners on their motion to suppress.

Sparse though it is, we think the record demonstrates that Detective Snow and his assistants, in the particular circumstances of this case, made a reasonable and good faith effort to minimize the interception of non-pertinent communications which they were not authorized to intercept. Turning off the tape recorder on personal calls was plainly part of that effort. Section 2510(4) defines “intercept” as “the* aural acquisition of the contents of any wire or oral communication . . . .” Because “aural” means both “of or relating to the ear” and “of or relating to the sense of hearing,” Webster’s Third New International Dictionary 144 (unabridged 1961), we think that “aural acquisition” refers to the acquisition of a message by means of a tape recorder as well as by means of the human ear. See Note, Minimization of Wire Interception: Presearch Guidelines and Postsearch Remedies, 26 Stan. L. Rev. 1411, 1415-17 (1974). To conclude, as petitioners urge, that “intercept” refers only to hearing or listening to communications, and not to recording, would suggest that one who records a conversation through a wiretap by means of a voice activated tape recorder, but who does not listen to, or hear the conversation at that time (or later during a playback) could possibly escape the criminal or civil liabilities imposed by Title III, a result which Congress could not have intended. Moreover, if listening to a conversation were an interference with rights of privacy, the preservation of that conversation for whatever purpose by means of a tape recording would be a greater interference with privacy interests manifestly productive of more serious harm. Consequently, that Snow and his assistants refrained from recording conversations as soon as they ascertained the personal nature of the calls is in itself a good faith effort to minimize interception.

While normally a home telephone is more associated with privacy expectations than a pay phone or a phone used exclusively for criminal activities, see United States v. James, supra, 494 F. 2d at 1020-21, Ross’s home and his home phone were central instruments in furtherance of his narcotics distribution operations. This circumstance would plainly justify a more extensive monitoring than a case where the phone was only an incidental part of a criminal conspiracy. Moreover, the monitoring agents had probable cause to believe that they were dealing with a sophisticated individual who knew that he was under police surveillance and who wás bent on avoiding detection of his conspiratorial activities, e.g., evasive driving techniques and the use of a closed circuit television system to counter police surveillance. In view of this background, and because the police were investigating an organized criminal conspiracy utilizing a code in conversing over the telephone in furtherance of the conspiracy, it was not unreasonable for the monitoring agents to listen to all conversations, particularly since, as Snow testified,

“when a drug code is used or replacement words are used for an actual narcotic, it only takes one word or two words to throw into a conversation where we would know that it was a drug conversation or drug related.”

Obviously, the monitoring agents could not determine the content of a communication unless they listened to it, and the fact that Ross was suspected of being involved in a narcotics conspiracy, with its own jargon or code, necessitated • listening to more seemingly innocuous conversations, with more attention, than otherwise would have been required if a simple type of crime were being investigated. That calls involving Ross’s children were monitored, albeit in cursory fashion, does not mandate a finding that there was failure to minimize; indeed, as the Court of Special Appeals noted, the cases take cognizance of the initial use of children to mask subsequently incriminating conversations. Where, as here, it appears plain that Ross knew his activities were under police surveillance, the monitoring agents would have been derelict had they not monitored the children’s calls until satisfied that they were of a personal nature.

That the wiretap was only of two weeks’ duration, and the court required periodic reports of police progress, are other factors bearing on the reasonableness of the conduct of the monitoring agents. All circumstances considered, as disclosed by the meager record before us, we conclude that the Court of Special Appeals correctly applied the law to the facts of this case in holding that the police made a reasonable and good faith effort to minimize the interception of unauthorized communications. Having so concluded, we find it unnecessary to determine whether failure adequately to minimize requires suppression of all the conversations overheard.

II

At the suppression hearing, Ross testified that he did not receive the inventory required by the court’s order and by § 2518(8)(d), notifying him that his phone had been tapped and his telephonic communications intercepted. The State thereafter produced the testimony of Detective Snow; it showed that on January 5, 1972, a search warrant had been issued authorizing a search of Ross’s home for illegal drugs. The warrant incorporated an affidavit of Detective Snow which contained all of the information required by both the court’s order and § 2518(8)(d) to be set forth in the inventory; additionally, the affidavit set forth the content of an incriminating phone conversation between Ross and Spease which formed the core of the State’s case against the petitioners. The warrant and affidavit were received in evidence at the suppression hearing. Snow testified that he personally served the warrant and affidavit upon Ross and that he orally informed Ross of the wiretap order on January 5, 1972, during execution of the search warrant, and told him at that time “that all the details concerning this interception were inside the affidavit.” Snow conceded that Spease was never given a copy of the search warrant application and no inventory was ever served upon him.

The Court of Special Appeals held that the State did not comply with the requirement of § 2518(8)(d) that Ross, as a person named in the intercept order, be served an inventory notifying him of the wiretap within 90 days of its termination. But it held that there was substantial compliance with the statute by reason of Ross’s having received a copy of the search warrant and affidavit containing all of the required information within twelve days after the tap had been terminated. Because Spease was not named in the wiretap order, the Court of Special Appeals held that under § 2518(8)(d) it was within the discretion of the judge who issued the order to determine whether the interest of justice required that he be given an inventory. After noting that Ross and Spease were represented by the same attorney, it concluded “that Spease suffered no prejudice through lack of formal notification and that Judge Loveless did not abuse his discretion in not requiring an inventory to be served on Spease.”

The petitioners contend that the inventory requirement of § 2518(8)(d) cannot be satisfied by providing the requisite information as part of an affidavit in support of a search warrant. They point out that at the time of their indictment on February 22, 1972, twenty-eight days remained of the 90-day period afforded the State to serve the inventory. They claim that strict compliance with the provisions of Title III has been mandated by the Supreme Court of the United States in United States v. Giordano, 416 U. S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974), and by this Court in State v. Siegel, 266 Md. 256, 292 A. 2d 86 (1972), and that substantial compliance with § 2518(8)(d) will not suffice. They contend that actual knowledge of the wiretap, or lack of prejudice, is never a determinative factor in considering whether failure to serve the requisite inventories compels suppression of the intercepted communications. Spease contends that his incriminating conversation with Ross must be suppressed because the judge who issued the wiretap order did not exercise the discretion.vested in him under § 2518(8)(d) to determine whether it was in the interest of justice that Spease be supplied with a copy of the inventory.

The purpose of the inventory requirement contained in the statute is well expressed in United States v. Eastman, 326 F. Supp. 1038, 1039 (M.D. Pa. 1971), aff'd 465 F. 2d 1057 (3d Cir. 1972):

“The provision for service on the defendant of an inventory and notice within ninety days of the wiretap is not meaningless. It eliminates, insofar as practicable, the possibility of completely secret electronic eavesdropping and grants to the person involved an opportunity to seek redress for an abusive interception either by a civil action for damages or by a suppression of the evidence in a criminal case.”

Where prejudice is not shown, or actual knowledge of the wiretap is evident, it has been held that failure to serve the inventory in strict compliance with the requirements of the statute does not require suppression. See United States v. Rizzo, 492 F. 2d 443 (2nd Cir. 1374); United States v. Wolk, 466 F. 2d 1143 (8th Cir. 1972); United States v. Smith. 463 F. 2d 710 (10th Cir. 1972); United States v. Lawson, 334 F. Supp. 612 (E.D. Pa. 1971); United States v. LaGorga, supra. Cf. United States v. Bernstein, 509 F. 2d 996 (4th Cir. 1975). United States v. Eastman, 465 F. 2d 1057 (3rd Cir. 1972), involved a wiretap authorization which, on its face, deliberately waived notice to the subject of the wiretap. The court said:

“The touchstone of our decision on this aspect of the case at bar is not one in which an inventory was delayed but rather is one in which specific provisions of Title III were deliberately and advertently not followed. In other words the failure to file the notice or inventory . . . resulted from a judicial act which on its face deliberately flouted and denigrated the provisions of Title III designated for the protection of the public. This we cannot countenance. The communications were unlawfully intercepted. Therefore, the provisions of § 2518(10)(a)(i) apply and the motion to suppress must be granted.” Id. at 1062.

In Eastman, the court noted with approval the distinction made in United States v. LaGorga, supra, between complete and deliberate failure to file thd inventory, and the absence of prejudice from the late filing of an inventory. See also People v. Hueston, 34 N.Y.2d 116, 312 N.E.2d 462, 356 N.Y.S.2d 272 (1974), where the Court of Appeals of New York, faced with the same wiretap order that was involved in Eastman, rejected the reasoning of that case and held that the failure to file an inventory was excused because the defendant had actual notice of the wiretap.

That Ross received actual notice of all the information required to be provided by § 2518(8)(d), within the time period specified in the court’s order, is plain. That the requisite information was transmitted to him by means of a search warrant-application, and not by a document entitled “inventory,” is not in our opinion dispositive of the question whether there was compliance with the statute. The obvious intent of § 2518(8)(d) is to provide for notification of the wiretap by means of a document reasonably calculated to transmit the required information within the specified time. We think that in the circumstances of this case the notification provided to Ross constituted compliance with the inventory requirement of the statute.

In so concluding, we are mindful of the fact that in United States v. Giordano, supra, the Supreme Court held that

“Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional interition to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” 416 U. S. at 527, 94 S. Ct. at 1832, 40 L. Ed. 2d at 360.

In that case, it was held that the authorization of the application for an intercept order by the Executive Assistant to the Attorney General, who, unlike those specified in § 2516, was not subject to senatorial confirmation, represented a failure to meet a precondition to the authorization of the wiretap which “was intended to play a central role in the statutory scheme.” Id. at 528, 94 S. Ct. at 1832, 40 L. Ed. 2d at 360. Consequently, the Court held that the wiretap was void ab initio, and under § 2518(10)(a)(i) all of the wiretap evidence must be suppressed.

In United States v. Chavez, 416 U. S. 562, 94 S. Ct. 1849, 40 L. Ed. 2d 380 (1974), the Supreme Court said that it did not go so far in Giordano “to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful’. . . [since] . . . [t]o establish such a rule would be at odds with the statute itself.” Id. at 574-75, 94 S. Ct. at 1856, 40 L. Ed. 2d at 392. In Chavez, it was held that the misidentification of the person authorizing a wiretap application approved by the Attorney General was not a “ ‘failure to satisfy any of those statutory requirements which directly and substantially implement’ ” the congressional intent. Id. It is thus clear that, while Congress intended that some of the statutory requirements of Title III be strictly construed, it did not intend that the courts interpret the statute in such a way as to subvert its effectiveness. See United States v. Kahn, 415 U. S. 143, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974). In United States v. Bernstein, supra, the court, citing Kahn, Giordano, and Chavez, said that a violation of Title III is material only if Congress intended the statutory provision that was not followed to be a precondition to obtaining intercept authority, and that whether it was or not depended on its role in the statute’s system of restraints on electronic surveillance.

In State v. Siegel, supra, we said:

“The statute [Title III] sets up a strict procedure. that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path. .. . Since the surveillance here failed to meet certain preconditions designed to protect appellee’s constitutional rights, .the evidence that arose from it must be suppressed .. ..” 266 Md. at 274, 292 A. 2d at 95-96.

The fatal defect in Siegel was the failure of the order authorizing the wiretap to meet the precondition requirements of §§ 2518(4)(e) and 2518(5) in that, unlike the order in the present case, it did not specify that the surveillance was to be conducted over a certain time period; that there was to be automatic termination upon the interception of certain conversations; that the surveillance was to commence as soon as practicable; that the interception of non-pertinent conversations was to be minimized; and that the tap should' terminate upon the attainment of the objective of the surveillance.³

As heretofore indicated, suppression of the intercepted communications would not be warranted simply because Ross received the requisite notification of the wiretap through receipt of a search warrant application. No particular form of the inventory notification is prescribed or required by § 2518(8)(d); all that is essential is that the form used convey the information required by the statute. The form, therefore, does not play a central role in the statutory scheme and is not a precondition to obtaining intercept authority under Giordano and Siegel.

While the judge who issued the wiretap order could have directed that Spease, as a party to an intercepted communication, be served with a copy of the inventory required by § 2518(8)(d), the fact that he failed to exercise his discretion in this regard does not require suppression of Spease’s intercepted communications under the facts of this case. The record discloses that petitioners were jointly indicted on February 22, 1972, within sixty days after the termination of the wiretap. On March 9, 1972, an attorney entered his appearance on behalf of both Spease and Ross. It is hardly unreasonable to infer that counsel was then in possession of the information contained in the search warrant application served on Ross, and knew of the wiretap order and of the intercepted communications. On May 17, 1972, the petitioners filed a motion for discovery and inspection of wiretap materials, consisting of the application, the affidavit, the wiretap order, and the recorded conversations. The State’s Attorney agreed to disclose this information informally. In any event, the record discloses that three weeks prior to trial Spease received the information requested.

Spease was not the target of the wiretap order, and his rights are primarily protected by § 2518(9) which prohibits use of evidence of intercepted communications against a party unless at least ten days prior to trial he has been furnished with a copy of the application and wiretap order. Of course, a person who should have been named in the wiretap order, but was not, falls within the provision for mandatory service of the inventory. United States v. Bernstein, supra. Unlike the facts in Bernstein, however, Spease was not a “known person” who had to be named in the wiretap order. Since Spease received the required subsection (9) notice, and since he had actual notice of the wiretap at least as early as May 17, 1972, almost six months prior to trial, Spease did not suffer any prejudice. See United States v. Rizzo, supra; United States v. Iannelli, 477 F. 2d 999 (3d Cir. 1973), aff'd on other grounds, 420 U. S. 770, 95 S. Ct. 1284, 43 L.Ed.2d 616 (1975); United States v. Ripka, 349 F. Supp. 539 (E.D. Pa. 1972), aff'd 480 F. 2d 919, 491 F. 2d 752 (3d Cir. 1973). The lack of service of an inventory upon Spease was not an intentional act of evasion by the State which impinged upon his constitutional rights or placed him at any tactical disadvantage; nor did it have such a result. See United States v. Chun, 503 F. 2d 533 (9th Cir. 1974). Consequently, Spease was not entitled to suppression of the intercepted conversations.

Judgments affirmed; petitioners to pay costs.

1 . Now Code (1974) Courts and Judicial Proceedings Article, §§ 10-401 to 10-408.

2 . In its opinion, the Court of Special Appeals set forth the total number of telephone interceptions made during the authorized period, together with the number believed to be related to the drug conspiracy. No evidence to this effect, however, was introduced at the suppression hearing or at the trial of the case.

3 . Nothing in our opinion in this case is intended to depart in any way from our holding in Siegel.