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UNITED STATES v. GELLER

April 6, 1983

UNITED STATES OF AMERICA
v.
THEODORE GELLER, AVRIM WEINER, LOUIS DeMAISE, LOUIS BRODY, ANTHONY DeANGELIS, LINDA PECK, JOSEPHINE DeMAISE, JOHN NEWELL, WILLIAM DAVID FRIEDMAN, a/k/a "Bull Dog", a/k/a "Dog", ANDREW SAMUELS, PETER LASSOS, a/k/a "Peter Marks", ROBERT GRIGGS, GEORGE GOLDSTEIN, SAVA GREENBERG



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 Defendants, *fn1" moving to suppress intercepted wire communications, argue that Pennsylvania's "Wiretapping and Electronic Surveillance Control Act" of 1978, 18 Pa. Con. Stat. Ann. § 5701 et seq., ("Wiretap Act" or "Act"), violates both the federal and state constitutions, that governmental misconduct in acquiring the order authorizing wire interception irredeemably tainted and distorted any permissible interception and that the government agents who executed the order violated legislative and judicial commands. A brief factual background is helpful in understanding our resolution of these issues.

 Commencing in November, 1980, state narcotics investigators began an extensive inquiry into the alleged heroin sales and distribution practices of defendants, Theodore Geller and Anthony DeAngelis. As a result thereof, Lawrence Kutney, an agent of Pennsylvania Bureau of Narcotics Investigations and Drug Control (BNIDC) purportedly purchased heroin directly from Geller who, in turn, made statements which indicated that one of his, Geller's, sources of supply was DeAngelis. Once Kutney was satisfied that DeAngelis, who resides at R.D. 1, Pine Road, Boyertown, Pennsylvania, was in fact Geller's supply, he applied to a member of Pennsylvania's Superior Court, Judge Cavanaugh, for an order authorizing the interception of DeAngelis' wire communications. The order was granted and BNIDC placed and maintained a "tap" in DeAngelis' phone. For reasons which are not clear, the federal government, rather than the state, has elected to prosecute the defendants.

 Because the pre-indictment investigation and wiretaps were conducted by state officers acting pursuant to state law, our inquiry turns to the effect of the state statute and its application in this federal proceeding. In order to support the introduction of intercepted wire communication at trial, state wiretap guidelines must be as stringent as the requirements of federal law. In other words, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20, and the Fourth Amendment to the United States Constitution establish the outer limits of any intrusion into the protected privacy area. State standards which are more protective of this same area must, however, be given effect. Consequently, state law standards which relate to the issuance and execution of a wiretap order predominate where they are more demanding than federal ones. In determining the contours of state law, federal courts may properly consider relevant federal law where state law is inadequate to provide sufficient guidance. Finally, federal evidentiary law governs the introduction of evidence at trial. See generally, United States v. Lilla, 534 F. Supp. 1247, 1253-54 (N.D. N.Y. 1982).

 Federal Constitutional Challenge

 Defendants challenge Pennsylvania's Wiretap Statute as violative of the federal constitution because it purportedly creates a constitutional imbalance, see e.g., Washington v. Texas, 388 U.S. 14, 23, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967) (Harlan, J. concurring), and deprives citizens of due process by granting state law enforcement personnel specified rights while denying similar rights to others. Further, because the statute contains no severability clause, defendants assert that the entire enactment is constitutionally infirm.

 Specifically, defendants point out that 18 Pa. Con. Stat. Ann. § 5704(2)(i) permits law enforcement officers to record conversations in which they are involved but that 18 Pa. Con. Stat. Ann. § 5703(1) deprives others of this same opportunity. Worse, ordinary citizens who record their conversations without the knowledge of the person with whom they are speaking commit a criminal offense. Id. Hence, defendants asseverate that Pennsylvania law enforcement officers can selectively record incriminating conversations and thereby entrap unwary citizens. Citizens, however, possess no correlative right to record their exculpatory conversations. Therefore, defendants contend that Pennsylvania's statutory scheme places citizens and potential defendants at an unconstitutional disadvantage by forcing them to either commit a crime by recording conversations or submit to possible entrapment. Because the statute lacks any severability clause, this constitutional deficiency purportedly imbues the entire legislation. Accordingly, defendants urge that it is irrelevant that the government will not seek to introduce any so-called "consentually monitored" conversations at trial.

 Rather than reach the constitutional issue, we will assume the unconstitutionality of the challenged portions of the Act and determine whether this hypothesized infirmity is fatal to the entire statute. *fn2"

 Pennsylvania provides that statutes are "presumed severable", Stoner v. Presbyterian University Hospital, 609 F.2d 109, 112 (3d Cir. 1979), so long as the stricken portion is not "essentially and inseparably connected with" other sections of the enactment. 1 Pa. Con. Stat. Ann. § 1925. Importantly, whether a state statute is capable of severance presents a question of state, not federal, law. Eisenstadt v. Baird, 405 U.S. 438, 442, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Commonwealth Department of Education v. First School, 471 Pa. 471, 370 A. 2d 702, 707 (1977). See also, Graham v. Hill, 444 F. Supp. 584, 594 (W.D. Tex. 1978).

 Our obligation is to determine whether Pennsylvania would have enacted the purportedly unconstitutional provisions of the Wiretap Act, 18 Pa. Con. Stat. Ann. §§ 5703(1) and 5704(2)(i), without passing the remainder of the legislation. The statutorily mandated objective is to determine "legislative intent", 1 Pa. Con. Stat. Ann. § 1925, the difficulty of which is obvious given the fact that the legislative body keeps no record of floor debates. Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855, 863 (1st Cir. 1980). We are not, however, without guidance. See, 1 Pa. Con. Stat. Ann. §§ 1921-1939 (providing the method by which statutes must be construed). The Pennsylvania legislature has instructed courts that legislative intent is properly divined by reference to the statute at issue where the enactment is expressed in "clear" terms, "free from all ambiguity". 1 Pa. Con. Stat. Ann. § 1921(b). Indeed, in Commonwealth v. Hammond, 308 Pa. Super. 139, 454 A. 2d 60, 61-2 (1982), the Superior Court, without specific reference to this rule of statutory interpretation, construed portions of the Wiretap Act according to their plain meaning.

 In the case at bar, the statute provides a specific method by which designated law enforcement officials apply for an order authorizing wire interception, 18 Pa. Con. Stat. Ann. § 5709, which order is available only when investigating specific crimes. 18 Pa. Con. Stat. Ann. § 5708. Moreover, the Superior Court Judge who authorizes the interception may only do so upon a "determination" that there is probable cause to believe that a number of delineated conditions exist. 18 Pa. Con. Stat. Ann. § 5710.

 These guarantees of judicial oversight apply to the interception of wire communication and do not govern the conduct of law enforcement officers who record conversations to which they are a party. In other words, the detailed requirements of the Wiretap Act which relate to the application for, and conduct of, a wiretap, apply to those situations in which law enforcement personnel intercept conversations between third persons. They have no impact upon the recording or interception of conversations where the recording official is a party to the discussion. Compare, 18 Pa. Con. Stat. Ann. §§ 5704 with 5708-12. Simply stated, the cited provisions of the Wiretap Act relate to different types of governmental activity. On one hand, the statute provides for intense judicial scrutiny of law enforcement personnel who surreptitiously intercept the conversations of third parties. On the other hand, the statute generally authorizes the interception of conversations in which law enforcement officials are participants.

 Because different statutory subsections regulate different types of governmental conduct, we conclude that even if a constitutional imbalance exists as to one subsection of the statute, the other subsection is properly severable and not adversely affected. We accordingly "find" that the facially unchallenged portion of the Wiretap Act is not "essentially and inseparably connected with, or . . . dependent upon" the challenged provision. Moreover, absent the challenged provision, the Act is not "incomplete and incapable of being executed in accordance with the legislative intent". 1 Pa. Con. Stat. Ann. § 1925. Therefore, the challenged subsections of the Act, 18 Pa. Con. Stat. Ann. §§ 5703 and 5704, are severable from the remaining portions thereof and any constitutional deficiency in those sections does not permeate the entire legislation. This conclusion warrants denial of the motion to suppress on federal constitutional grounds. *fn3"

 State Constitutional Challenge

 Defendants, still moving to suppress, argue that irrespective of any federal constitutional deficiency, the Wiretap Act offends the aegis of the Pennsylvania Constitution *fn4" and must be declared unconstitutional under state standards. Undoubtedly, states may impose "higher standards on searches and seizures" than required by the United States Constitution. Cooper v. California, 386 U.S. 58, 62, 17 L. Ed. 2d 730, 87 S. Ct. 788 (1967). See also, Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980) (States may adopt constitutional provisions which protect individual liberties "more expansive[ly]" than the Federal Constitution); Davis v. Board of Medical Examiners, 497 F. Supp. 525, 528 (D. N.J. 1980) (State constitutional provisions must be given effect where they are more solicitious of analogous rights secured by the First Amendment). See generally, Oregon v. Hass, 420 U.S. 714, 719-20, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975) (Distinguishing between the deference accorded to state court interpretations of state and federal constitutional guarantees.)

 Pennsylvania courts have occasionally interpreted the state constitution as establishing individual rights broader than those which exist under the federal constitution. But see, Commonwealth v. Chaitt, 176 Pa. Super. 318, 107 A.2d 214 (1954). For example, in Commonwealth v. DeJohn, 486 Pa. 32, 403 A. 2d 1283, 1289 (1979), the Pennsylvania Supreme Court expressed its concern that the decision in United States v. Miller, 425 U.S. 435, 48 L. Ed. 2d 71, 96 S. Ct. 1619 (1976), represented a "dangerous precedent, with great potential for abuse" and declined to follow the case when construing the state constitution. Thus, Pennsylvanians have an expectation of privacy in their banking records which others do not similarly enjoy. Additionally, statements seized in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), are admissible for impeachment purposes in a federal prosecution, Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), but are inadmissible for like purposes in a state prosecution. Commonwealth v. Triplett, 462 Pa. 244, 341 A. 2d 62, 64 (1975). Defendants argue that these cases demonstrate that the Pennsylvania Constitution more zealously guards individual rights than does the federal one and that application of the stricter state standard compels the conclusion that the Act violates the state constitution. We disagree.

 We begin our analysis with the observation that the Commonwealth's legislation enjoys a presumption of constitutionality, 1 Pa. Con. Stat. Ann. § 1922(3), and that doubts are to be resolved in favor of such a finding. Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 394 A. 2d 932, 937 (1978). Cf., Cannon v. University of Chicago, 441 U.S. 677, 696-97, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979) ("It is always appropriate to assume that our elected representatives . . . know the law . . ."). Finally, although we are not bound by a recent decision of the Court of Common Pleas, Commonwealth v. Baldassari, No. 82-10400 (CCP Lycoming County), which sustained the statute against a similar challenge, we nevertheless conclude that the analysis contained therein is entitled to appropriate consideration. See, Commissioner v. Bosch, 387 U.S. 456, 465, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967) (Federal courts interpreting state law should give "proper regard" to relevant rulings of lower state courts.) Cf., United States v. Manfredi, 488 F.2d 588, 598 (2nd Cir. 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2651, 41 L. Ed. 2d 240 (1974) (In the absence of "dispositive" or "indicative" state law, application of federal law is appropriate.) With this contextual framework for our analysis, we consider the Wiretap Act and whether it violates the relevant provision of the State Constitution, Art. I, § 8.

 Defendants, citing Commonwealth v. Papszycki, 442 Pa. 234, 275 A.2d 28 (1971), assert that Pennsylvania's prior law forbade wiretaps of "every description" and that this prohibition was "vigorously enforced"; therefore, they contend, "any" legislation which permits the interception of wire communications is per se violative of Pennsylvania's Constitution. We think that this argument reads too much into Papszycki, generally misstates the law of Pennsylvania, and ignores recent appellate court authority.

 Papszycki, contrary to defendants' assertion, provides no illumination of the constitutional issue at bar. The court there considered whether affixing an induction coil device to a telephone receiver and thereby amplifying conversations constituted an impermissible wiretap in contravention of then existing state law. Reasoning that the now repealed statute prohibited the interception of wire communications "without permission of the parties to such communication", the court concluded that mutual consent to intercept was required. Id. at 237-38. See also, Commonwealth v. Murray, 423 Pa. 37, 43-49, 223 A.2d 102 (1966). Specifically, the court's analysis centered on the plural "parties" and reasoned that one "party" could not properly intercept a wire communication absent an agreement with the other "party". Commonwealth v. Papszycki, 442 Pa. at 237. Therefore, the court suppressed the intercepted statements. Indeed, this analysis of Papszycki is confirmed by Commonwealth v. Baldwin, 282 Pa. Super. 82, 422 A. 2d 838, 845-46 (1980), which also considered the same, now repealed, statute.

 Although Pennsylvania courts have solicitously guarded the rights of the Commonwealth's citizens, the cases failed to demonstrate that "any" statute authorizing a wiretap is unconstitutional. True, in eloquent dictum, Justice Musmanno observed that the "right to be let alone", as expressed in Art. I, § 8 of the state constitution, would be violated

 
if detectives and private intermeddlers, [could] without legal responsibility, peer through keyholes, eavesdrop at the table, listen at the transom and over the telephone, and crawl under the bed[.] Then all constitutional guarantees [would] become [a] meaningless aggregation of words, as disconnected as a broken necklace whose beads have scattered on the floor.

 Commonwealth v. Murray, 423 Pa. at 51-2 (emphasis added). This and other equally expressive and colorful language by Justice Musmanno, expresses the traditional notion that citizens possess privacy rights. See e.g., Roe v. Wade, 410 U.S. 113, 152, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1972). Murray, upon which defendants rely, cannot be read to indicate that "any" statute authorizing wire interceptions violates the Pennsylvania Constitution. The portion of Murray quoted above discusses the evils of eavesdropping and wiretapping "without legal responsibility". The legislation at bar, however, allocates specific legal responsibilities to judges, law enforcement agents and prosecutors. See, 18 Pa. Con. Stat. Ann. §§ 5708-23.

 Murray also observed that "were it not for" specified legislation "irresponsible agencies" could "tap wires". The court also observed that "without the [now repealed] Act of 1957 . . . malevolent scandalmonger[s]" could dine at the "banquet table of the most guarded secrets". Commonwealth v. Murray, 423 Pa. at 52. These statements, to the extent they are not dictum, demonstrate that absent prophylactic legislation, wiretapping and eavesdropping might continue unabated. In other words, Pennsylvania's Constitution, unaided by, and unadorned with, appropriate legislation is, by itself, apparently incapable of preventing wiretapping. Therefore, defendants' suggestion that "any" statute which authorizes and regulates wiretapping is necessarily repugnant to the Constitution is erroneous. Simply stated, if the Constitution does not prevent wiretapping, passage of a statute authorizing its use does not ipso facto violate the same document.

 The Commonwealth's post- Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), construction of Art. I, § 8 *fn5" demonstrates that Pennsylvania has barred the introduction of illegally seized evidence from its courts. Commonwealth v. Smyser, 205 Pa. Super. 599, 211 A.2d 59 (1965). In fact, Pennsylvania is bound by and adheres to the "general rule" that illegally obtained evidence is inadmissible against a criminal defendant. Commonwealth v. Romberger, 474 Pa. 190, 378 A. 2d 283, 286 (1977).

 Given the Commonwealth's hearty endorsement of the "general rule" prohibiting the introduction of illegally seized evidence, Commonwealth v. Romberger, 378 A. 2d at 286, it would be anomalous in view of the growing Bennett line of cases, to conclude that the Pennsylvania Constitution would be offended by "any" statute authorizing wire interceptions. Defendants' inability to forcefully articulate a legal theory as to how the current Wiretap Act violates Art. I, § 8 of the state constitution, coupled with our analysis of the Pennsylvania cases, including Baldassari, and the statutory presumption of constitutionality, 1 Pa. Con. Stat. Ann. § 1922(3), ...


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