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.
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
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
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).
The state courts have, however, also taken pains to insure against any "unwarranted extension of the exclusionary rule". Commonwealth v. Bennett, 245 Pa. Super. 457, 369 A. 2d 493, 494 (1976). In Bennett, a legally authorized New Jersey wiretap yielded information upon which Pennsylvania authorities predicated probable cause to obtain a warrant. The court recognized that the New Jersey wiretap statute authorized conduct which would be illegal in Pennsylvania but nevertheless failed to suppress the evidence. Reasoning that Pennsylvania lacked the authority to regulate conduct in New Jersey, Bennett concluded that a judicial prohibition on the "exchange of information" between law enforcement agencies of sister states "cannot be justified". Id. Recognizing its obligation to "extend to all people the protection of constitutional safeguards", Bennett held that "no law of this Commonwealth was violated, . . . the rights of our citizens were not infringed" by the use of wiretap evidence in a Pennsylvania court. Commonwealth v. Bennett, 369 A. 2d at 494-95. Accord, Commonwealth v. Inadi, 303 Pa. Super. 409, 449 A.2d 753 (1982) (Applying Bennett to an extradition hearing). See also, Commonwealth v. Corbo, 295 Pa. Super. 42, 440 A. 2d 1213 (1982).
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), justifies our conclusion that the Wiretap Act is not violative of the Pennsylvania Constitution. Accordingly, we shall deny the motions to suppress which so contend.
Challenges Relating to the Acquisition of the Order Authorizing Wire Interceptions
Under both Federal, 18 U.S.C. § 2518(3)(a), and State law, 18 Pa. Con. Stat. Ann. § 5710(a), an order authorizing interception of wire communications may only issue upon a finding that "probable cause" exists as to a number of delineated events. Whether an affidavit, sworn in connection with an application for a warrant, contains "probable cause" requires consideration of whether the
facts set forth . . . and the inferences that could properly be drawn therefrom established a substantial basis to permit a neutral and detached magistrate . . . to conclude that
prohibited activity was occurring. United States v. Zurosky, 614 F.2d 779, 787 (1st Cir. 1979), cert. denied, 446 U.S. 967, 64 L. Ed. 2d 826, 100 S. Ct. 2945 (1980). When engaging in this post-hoc determination, courts are reminded that the issuing judicial officer may indulge "normal inferences drawn from the surrounding circumstances", United States v. Brown, 584 F.2d 252, 256 (8th Cir. 1978), cert. denied, 440 U.S. 910, 59 L. Ed. 2d 458, 99 S. Ct. 1220 (1979), and are cautioned to avoid a hyper-technical construction of the affidavit. In fact, affidavits are to be tested by a common sense and realistic interpretation. United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); United States v. Flores, 679 F.2d 173, 176 (9th Cir. 1982), United States v. Seta, 669 F.2d 400, 402 (6th Cir. 1982).
Consistent with these principles, "erroneous assumptions" contained in an affidavit do not necessarily vitiate an otherwise valid warrant, United States v. Smith, 588 F.2d 737, 739 (9th Cir. 1978), cert. denied, 440 U.S. 939, 99 S. Ct. 1287, 59 L. Ed. 2d 498 (1979), the issuing authority's findings are entitled to a deference, United States v. Martino, 664 F.2d 860, 867 (2nd Cir. 1981), and doubts should be resolved in favor of sustaining their conclusions. United States v. Allen, 588 F.2d 1100, 1106 (5th Cir.), cert. denied, 441 U.S. 965, 99 S. Ct. 2415, 60 L. Ed. 2d 1071 (1979). Most importantly, however, the high degree of deference accorded the issuing judicial officer's conclusions should never obstruct a reviewing court from taking "great care" to insure that probable cause actually existed when the warrant issued. United States v. Lockett, 674 F.2d 843, 846 (11th Cir. 1982). See also, United States v. Tucker, 481 F. Supp. 182, 187 (E.D. N.Y. 1979). Finally, courts should never permit themselves to become a "rubber stamp for the police". Aguilar v. Texas, 378 U.S. 108, 111, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964).
Defendants attack the affidavit submitted in support of the wiretap application and assert that it impermissibly fails to set forth specific, reliable facts upon which Judge Cavanaugh could have concluded that probable cause existed to tap the DeAngelis phone. Continuing, defendants urge that the affiant knowingly and intentionally, or with a reckless disregard for the truth, made false statements in securing the wiretap authorization. Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). Finally, defendants asseverate that suppression is required because of the affiant's dual failure to either identify co-conspirators or to establish that normal investigative procedures have failed, appear unlikely to succeed or are too dangerous to employ. 18 Pa. Con. Stat. Ann. §§ 5709(3)(i) and (vii). We now consider these contentions.
Whether the affidavit contains sufficient factual information upon which to make a finding of probable cause requires reference to the challenged document itself and a determination of whether it satisfies the requirements of Aguilar v. Texas, 378 U.S. at 114 and Spinelli v. United States, 393 U.S. 410, 412, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969). In recently exploring these cases, the Third Circuit observed that
in Aguilar, the court held that probable cause may be established on the basis of hearsay -- for example, by an affidavit of a law enforcement officer that relies entirely on an informant's tip. However, to ensure that it is the magistrate, not the informant or the officer, who decides whether probable cause exists, the Aguilar Court held that such a hearsay affidavit must meet a two-pronged test. First, the affidavit must contain facts sufficient to support the finding that the informant based his conclusions on adequate knowledge. Secondly, the affidavit must recite facts, not mere conclusory assertions of the officer, which demonstrate the credibility of the informant. The magistrate may base probable cause for a warrant exclusively on an informant's tip only when facts demonstrating both the informant's basis of knowledge and his credibility are specified in the officer's affidavit.