Appeal, No. 71, Jan. T., 1955, from judgment of Superior Court, Oct. T., 1953, No. 289, affirming judgment of Court of Quarter Sessions of Lancaster County, Dec. T., 1952, No. 6, in case of Commonwealth of Pennsylvania v. Isaac Chaitt. Judgment affirmed.
Lemuel B. Schofield, with him John B. Brumbelow, and W. Hensel Brown, for appellant.
William C. Storb, District Attorney, for appellee.
Julian E. Goldberg and William Allen Rahill filed a brief for American Civil Liberties Union, amicus curiae.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This case is concerned solely with the question of the admissibility, in a criminal prosecution, of evidence obtained by the interception of telephonic communications, - a process colloquially known as "wire tapping."
Defendant, Isaac Chaitt, was indicted, tried and convicted on charges of bookmaking and being a common gambler; he was sentenced to imprisonment and to pay a fine on the charge of bookmaking and sentence was suspended on the common gambler charge. The principal evidence adduced by the Commonwealth in support of the bookmaking charge consisted of certain telephone conversations between defendant and one Manduchi which were intercepted by two police officers of the City of Lancaster who had placed a tap on the telephone wire leading into Manduchi's apartment. These officers testified, over objection, as to the contents of the conversations they thus overheard and which revealed that defendant received and accepted horse race bets from Manduchi. The latter's apartment was at 715 North Cuke Street, Lancaster, and the telephone calls were from there to defendant's apartment at 155 North Queen Street, also in that city. The court refused defendant's motion for a new trial and the Superior Court affirmed the judgment; (176 Pa. Superior Ct. 318, 107 A.2d 214). From that affirmance we allowed the present appeal. It is conceded by the Commonwealth that if the testimony of the officers was improperly admitted defendant would have been, and now is, entitled to a new trial.
At the outset it must be understood that we are not here concerned with the much controverted question as to whether there is any imperative need for wire tapping for the detection and prosecution of crime, or, even if such a need exists, whether it is outweighed by the iniquity of wire tapping from a purely ethical and social standpoint and by its impairment of the right
through an illegal search and seizure by federal agents. On the other hand, however, it has definitely held that this ruling does not apply to prosecutions in a State court for a State crime: Wolf v. Colorado, 338 U.S. 25, nor where the illegal search and seizure has been made by anyone other than a federal officer acting under a claim of federal authority: Weeks v. United States, 232 U.S. 383, 398; Burdeau v. McDowell, 256 U.S. 465; Feldman v. United States, 322 U.S. 487, 490, 492; Irvine v. California, 347 U.S. 128, 136; Serio v. United States, 203 F.2d 576.
With this background in mind we proceed to a consideration of the present question in regard to wire tapping, and in that connection the first point to be noted is that wire tapping is not a violation of the Fourth Amendment of the Constitution of the United States since the searches and seizures to which that Amendment relates are only of material things, - one's person, house, papers or effects. Therefore the interception of telephonic communications is not illegal nor are the overheard conversations inadmissible in evidence unless prohibited by statute: Olmstead v. United States, 277 U.S. 438, 464-468. It is by Section 605 of the Federal Communications Act of June 19, 1934, c. 652, 48 Stat. 1103, 47 U.S.C.A. § 605, that such a prohibition was effected. That Section provides in substance that no person receiving or transmitting, or assisting in receiving or transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the contents thereof to any person other than the addressee, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto, and no person having become acquainted with the contents of the same, knowing that such information was so obtained, shall divulge or publish the contents thereof or use the
same or any information therein contained for his own benefit or for the benefit of another not entitled thereto. These provisions, therefore, prohibit employes of communication agencies from divulging any interstate or foreign communications. But the portion of the Section from which the present problem arises is as follows: "and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person."
Two questions soon arose as to the scope of this provision. The first was whether the phrase "no person" embraced federal agents engaged in the detection of crime, and whether "divulging" included the giving of testimony in a federal court as to the contents of an intercepted communication. In Nardone v. United States, 302 U.S. 379, it was argued that such general words as "no person" should not be held to include the sovereign and apply to federal officers, but the court held to the contrary and also that the prohibition against divulging the contents of intercepted messages banned the giving of testimony in regard thereto in a federal court.
The second question was whether the prohibition against interception applied to intrastate as well as interstate and foreign communications. In Weiss v. United States, 308 U.S. 321, a policeman in New York City acting under instructions of a United States Post Office Inspector, tapped telephone wires over a period of months; the intercepted messages consisted of both intrastate and interstate communications. The court stated that, since Congress had power, when necessary for the protection of interstate commerce, to regulate intrastate transactions, there was no constitutional requirement that the scope of this statute be limited so
as to exclude intrastate communications, and accordingly it held that none of the intercepted messages were admissible in evidence in a criminal prosecution in the Federal court.
In the present case there were no interstate communications, all the telephoning between defendant and Manduchi taking place within the City of Lancaster. There may be some room to doubt, therefore, whether the power of Congress to regulate interstate commerce extends to such a situation, or, if so, whether the decision in the Weiss case was intended to be broad enough to include the interception of purely local messages. Be that as it may, however, the more important question is whether State agents engaged in the detection of a State crime and testifying in a State court are included within the intended scope of Section 605 of the Act. It is the contention of appellant that they are so included and that therefore they not only commit a crime when they intercept a communication but an additional crime when they divulge it by testimony in court; accordingly he argues that for the court to allow them to give such testimony is practically to sanction and condone the commission of a criminal offense in its very presence, and therefore, even though their testimony be relevant to the determination of the guilt or innocence of the person on trial, it should not be received under such circumstances. Appellant would thus distinguish the search and seizure cases previously referred to on the ground that there the witness merely testified to the information gained by a crime already committed but did not commit another crime in and through the very act of testifying.
In our opinion Section 605 of the Act was not intended to, and does not, relate to the divulging of the contents of intercepted communications by State agents
testifying in the criminal prosecution of a State crime in a State court. In Schwartz v. Texas, 344 U.S. 199, it was held that the Section applies only to the exclusion in federal court proceedings of evidence obtained and sought to be divulged in violation thereof, but does not exclude such evidence in State court proceedings. When it is borne in mind that an intention of Congress to supersede or suspend the exercise of the police powers of the States, even when it has the power to do so, is not to be implied unless its purpose to effect that result is clearly manifested, (Reid v. Colorado, 187 U.S. 137, 148; Atchison, Topeka & Sante Fe Rwy. Co. v. Railroad Commission of California, 283 U.S. 380, 392, 393), it would seem quite incredible that Congress intended by the phraseology it employed in Section 605 to interfere with those police powers and thereby prevent the States not only from seeking to detect the commission of crime but even possibly to prevent it. It would seem likewise incredible that Congress could have intended to make it a crime for a State agent to testify in a State court to intercepted telephonic communications and thus, in effect, while on the one hand admitting the existence of the power in States to receive such evidence, on the other making it practically impossible for such testimony to be given. And since the Schwartz case holds that notwithstanding the prohibition of Section 605 State agents may divulge the contents of intercepted communications in testimony in a State court, the inescapable inference is that the provision in that Section that "no person shall divulge" such communications does not include State agents in the phrase "no person."*fn3 Such interpretation
is in accord with the well established rule of statutory construction that the literal terms of a statute not only may, but must be limited in their application where a consideration of the whole legislation indicates that such was the intention of the framers: United States v. Kirby, 7 Wallace (74 U.S.) 482, 486, 487; Church of the Holy Trinity v. United States, 143 U.S. 457, 459; Guessefeldt v. McGrath, Attorney General, 342 U.S. 308. Thus in the last-named case, where an Act of Congress provided that "No property ... of ... any national of either such country [Germany or Japan] Japan] ... shall be returned to former owners thereof ...," it was ruled, notwithstanding the inclusiveness of the term "any national," that it should be held applicable only to some German "nationals," namely, those who were enemies.
Several States have held, notwithstanding Section 605 of the Federal Communications Act, that evidence procured by wire tapping was admissible in their courts, and such evidence was in fact admitted in Leon v. State of Maryland, 180 Md. 279, 284, sub nom. Hubin v. State, 180 Md. 279, 23 A.2d 706, 709; in People v. Channell, 107 Cal.App.2d 198, 199, 236 P.2d 654, 657, 658; in Harlem Check Cashing Corporation v. Bell, Superintendent of Banks, 296 N.Y. 15, 65 N.E.2d 854; and in People v. Stemmer, 298 N.Y. 728, 83 N.E.2d 141. In the Harlem Check Cashing Corporation case it was said: "While there are expressions in the opinion of the court [in the Weiss case] which seem to go so far as to interpret the Federal Statute as a substantive law forbidding all disclosure or divulgence, the decision was concerned only with the propriety of
the receipt of such intercepted messages in evidence on the trial of a criminal case in a Federal court. The State of New York having provided, by Constitution and statute, certain specific methods by which it may exercise its fundamental power of gathering evidence of criminality and of prosecuting crime, it surely is not to be assumed that Congress intended to circumscribe that power unless it unequivocally indicated such an intent. A Federal statute, it is recognized, must be presumed to be limited in effect to the Federal jurisdiction and not to supersede a State's exercise of its police power unless there be a clear manifestation to the contrary." [citing cases].
The admission by the trial court of the testimony here in question was not a violation of either the Federal*fn4 or the State constitution, nor of any legislative enactment of the Commonwealth, nor, in our opinion, of the Federal Communications Act of 1934, and no court, in the 20 years which have elapsed since the passage of that Act, has decided to the contrary.
The order of the Superior Court, affirming the judgment of the Court of Quarter Sessions of ...