MD: Phone call recorded on cell phone that was searched not protected by state wiretap act

Defendant recorded a drug transaction on his cell phone. When his phone was seized and then searched during his arrest, the recording was found. It was legitimately seized, and the defendant can’t claim the state wiretap act protected him as the recorder of the conversation. Agnew v. State, 2018 Md. LEXIS 644 (Nov. 20, 2018):

The purpose of the Wiretap Act makes clear, and as the Court of Special Appeals stated in Maddox, the Wiretap Act’s “protective umbrella” was not intended to extend to Agnew under the scenario before us.

In enacting [the Maryland Wiretap Act], the General Assembly sought to protect those who do not know their conversation is being electronically intercepted; it did not intend to allow an accused to consent to the surreptitious recording of his or her conversation with another party and later cause that recording to be suppressed on the ground that the other party to the conversation did not consent. The result would be ludicrous.

Maddox, 69 Md. App. at 301, 517 A.2d at 372. It would be equally, if not more, ludicrous to conclude that the purpose of the Wiretap Act extended to protect a party who records their own conversation without the consent of the other party, and then seeks to block its admission due to the intentional failure to obtain the other person’s consent. Agnew cannot be an aggrieved person by virtue of his own act of interception. Agnew did not merely permit a third party to record the conversation, as in Maddox, but intercepted it himself, deliberately violating the Wiretap Act. Because Agnew knowingly and intentionally recorded himself and another person on his phone, he should not be able to claim sanctuary as an “aggrieved person” under the Wiretap Act.