David Thomas v. United States ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. IS-CM-lBSO
DAVH)THOMASNAHHLLANL
V.
UNI'I‘I'_-D S'l'.»\'i 125, Al>ri:i.l__i:lz.
Appea| t"rom the Superior Coun
ol``the District ot``Columbia
(DVl\/l-l$Ol-l$)
(l"lon. lose M. Lopez‘ l\/lotions .ludge)
(l~lon. Robert E. l\/lorin, 'I``ria| .ludge)
(Argued April 20_ 2017 Deeided October ll 20 | 7)
Ffetc/ier P. T/iompson i``or appellant.
l"alinda Jones, Assistant United States Attorney, with whom C'/miming D.
P/n'/h'p.s', United States Attomey at the time the briet`` was filed, and E/i``:abei/i
Trosinan, C'/n'isei/en R. A'o/}L and il’Iarisa S. ll/Jst, Assistant United States
Attorneys1 were on the briet``, f``or appellee
Before l\/lL``Ll;l'Slj, i-'issoeiate .]nrige, and WASIIIN(';'|'(``)N and i"/\RRIEl_I__, Senior
Jncige.s.
\l\//\SItIi``‘ti'l't_)i\Iq Sen:'or Jm/ge: David Thomas (““appellant") was found guilty
ot`` attempted voyeurism t``or photographing his sexual partner while she slept nude
next to him and without her eonsent. Appeliant Sent the photograph to an unknown
l\.)
number ot`` third parties and the photograph made its way online. The victim
notified law enforcement, and a recorded phone conversation was arranged
between the victim and appellant, with only the victim``s consent and knowledge
that the conversation was being recorded On appeal, appellant argues that the
audio recording was unlawful under Maryland law where he was located during its
reeording. and therel``ore. the trial court erred in denying his motion to suppress
We aff``irm.
ln April ol`` 2013, appellant and the victim. .I.P.._ met while they were both
students at Howard University. The pair briefly dated and became sexually
intimate on one occasion in J.P.``s bedroom Unbel123 A.3d 199, 202-03 (D.C. 2()15)
(internal quotation omitted). "lnterpreting a statute or a regulation is a holistic
endeavor," whereby we consider a statute in the context of its entire statutoly
scheme and the language ol``surrounding and related paragraphs ll-“'.H. 1'. D. ll-".. 78
A.3d 327. 337 (D.C. 2013) (internal quotation omitted).
3 ln Mary|and it is unlawfuL in the absence of two-party consent. for “an
investigative or law enforcement officer acting in a criminal investigation or any
other person acting at the prior direction and under the supervision of an
investigative or law enforcement officer to intercept a wire, oral._ or electronic
communication" unless the intercept is to provide evidence for specific enumerated
offenses, ol`` which voyeurism is not one. l\/ld. C``ode Ann.. Cts. & .lud. Proc. § 10-
402 [c)(.'£)(ii) (West 2015).
Under D.C. Code § 23-542." the legislature has clearly defined what acts of
interception disclosure, and use of wire or oral communications are lawful or
unlawful in the District of Columbia. ll`` an intercepted audio recording does not
meet one of``the enumerated criteria, then under § 23-551 (b)( l )4 a defendant may
move to suppress The one-party consent recording here clearly falls within the
purview of our statute. See D.C. Code § 123-542 (b}(2). lt also provides that the
only exceptions are those "specifically provided in this subchapter." D.C. Code
§ 23-542 (a). While appellant argues that the language of§ 23-55| (bl( l ) does not
expressly limit the admissibility of recorded conversations to those lawfully
obtained under the District``s surveillance statute1 we do not read the statute as
incorporating the laws o|`` any otherjurisdiction. Nowhere in this subchapter has
the legislature authorized the inclusion of the law of another jurisdiction despite
l "``lt shall not be unlawful under this section for . . . a person acting under
color of law to intercept a wire or oral communication where such person is a
party to the communication or where one of``the parties to the communication has
given prior consent to such interception . . . D.C. Code § 23-542 (b)(l).
“l "Any aggrieved person in any trial, hearing. or proceeding in or before any
count . . . of``the Llnited States or the District of Columbia, may move to suppress
the contents of any intercepted wire or oral communication or evidence derived
therefroln on the grounds that the communication was unlawfully intercepted."'
D.C. Code § 231-551 (b)( l ).
appellant``s attempts to suggest otherwise and we can think of no legitimate policy
justification for doing so.5 See also D.C. Code § 23-553 (b) (2012 Repl.) (persons
may testify in criminal cases about communications intercepted “in conformity
with" subchapter of D.C. Code including D.C. Code § 23-542).
ln addition our holding is consistent with how the federal courts have
addressed similar circumstances Evidence that is obtained in violation of state law
is nonetheless generally admissible in federal prosecutions so long as there has
5 Appellant relies on rt/Irrsio;‘r``r r'. Store, 591 A.?.d 481 (l\/ld. 1991). and the
l'vlaryland Code in support of his argument that the intercept was unlawfully
obtained l'lowever1 rlf!rrsrafa speaks to the admissibility of extraterritorially
intercepted communications under lvlaryland law. [d. at 485 (“[E]vidence
intercepted pursuant to more lenient statutory enactments of other jurisdictions
must comply with l\/laryland``s more restrictive standards before it may be lawfully
disclosed in a l\/laryland court."). fn that case, the contents of``the interception were
excluded not because Maryland purported to make the interception unlawful as a
matter of l\/laryland law even though it occurred in D.C., but rather because the
Maryland legislature had provided that only interceptions that met Maryland``s
requirements would be admissible as evidence in proceedings in Maryland. !d.
While rlflnsarfir does not control the admissibility of lawfully intercepted
communications in the District of Columbia, the same reasoning applies here.
District of Columbia law governing the admissibility of such evidence provides
that interceptions that meet District of Columbia requirements are admissible as
evidence in District proceedings Here the recording met the District``s
requirements and therefore, the evidence was properly admitted in court. As the
Maryland Court of Appeals recognized in fl»!rr.s'ta)‘r``x ““|\/laryland may not ordinarily
proscribe conduct occurring outside its bourrdaries." but could "regulate the
admissibility of evidence in its courts." !d. at 48(1. 'fhe same reasoning applies
with equal force in thc District ol``Columbia.
been compliance with all applicable federal requirements and the Four'th
Amendment. See Uniteci States r’. Ecirnomi, 718 F. Supp. 988. 993 (D.D.C. 1989)
(denying defendants`` motion to suppress intercepted conversations that were
obtained contrary to the laws of l\/laryland as the intercepts were lawfully made
pursuant to federal law. and thus properly admissible in federal court);
RES'I``ATEr.-rEN'r (SECoND) or-‘ Cc_)Nl~'Ltc'r' or-' L./tws § 138 (1971) (‘“Tlre local law of
the forum determines the admissibility of evidence . . . ."). This general rule is
grounded in two sound policy considerations to allow otherwise (l) would permit
a foreign state to frustrate the legislative policy of another state in the enforcement
of its laws and (2) would create circumstances where a foreign court is having to
decide the breadth ofanother state``s laws1 decisions that are best left to that state to
make. See generofl_t' Urrr'ted States v. F_’)‘i)r:/reioier. 826 F.2d 200, 204 (2d Cir.
1987); Urn``teo' States r'. Sha)_"fer, 520 F.2d 13()9, 1372 (3d Cit'. 1975). We see no
compelling justification for why the laws of l\/laryland should be permitted to
frustrate the prosecution of crimes within the District of Columbia by excluding
lawfully obtained evidence within the District.
Because the interception of appellant``s phone conversation was lawfully
obtained under D.C. Code § 23-542q the trial court did not err in denying
appellant``s motion to suppress
10
For' the foregoing reasons thejudgment of``the trial court is
A_f)"irmeci.