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COMMONWEALTH PENNSYLVANIA v. DONNA DOTY (08/16/85)

filed: August 16, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DONNA DOTY, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GARY KIRKWOOD, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 82-10, 163. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 81-10-426.

COUNSEL

Marshall E. Anders, Stroudsburg, for appellant (at No. 1301).

William P. Carlucci, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Alan Ellis, Philadelphia, for appellant (at No. 1312).

Wieand, Del Sole and Popovich, JJ.

Author: Wieand

[ 345 Pa. Super. Page 387]

Donna Doty and Gary Kirkwood were tried non-jury and were convicted of criminal conspiracy and possession with intent to deliver hashish and marijuana. At trial, the Commonwealth relied upon incriminating evidence acquired by placing a tap on the telephone serving the residence of Gary and Linda Kirkwood. On direct appeal, the principal argument made by Doty and Kirkwood is that the Pennsylvania Wiretapping and Electronic Surveillance Control Act of October 4, 1978, P.L. 831, No. 164,*fn1 is unconstitutional or, if valid, that it was improperly applied in this case. We disagree. For this and other reasons appearing in this Opinion, we affirm the judgments of sentence imposed by the trial court.

It is well settled that a strong presumption of constitutionality attaches to statutes duly enacted by the legislature. Estate of Cox, 327 Pa. Super. 479, 483, 476 A.2d 367, 370 (1984) and cases there cited. Appellants bear the burden of demonstrating that the statute "clearly, palpably and plainly" violates the Constitution. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981); Estate of Cox, supra. Appellants' argument that the Pennsylvania Wiretap Law is facially unconstitutional because it violates the right of privacy implicit in Article 1, Section 8 of the Pennsylvania Constitution is meritless. Article 1, Section 8 provides as follows:

Sec. 8. Security from searches and seizures

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or thing shall issue without describing them

[ 345 Pa. Super. Page 388]

    as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

This serves only to prohibit a nonconsensual electronic interception without warrant or court order issued upon probable cause. It does not prohibit all nonconsensual electronic interception of telecommunications. Commonwealth v. Hassine, 340 Pa. Super. 318, 354, 490 A.2d 438, 457 (1985). An argument similar to that made in this case was made to and rejected by the United States Court for the Eastern District of Pennsylvania in United States v. Geller, 560 F.Supp. 1309 (E.D.Pa. 1983), aff'd sub nom., United States v. DeMaise, 745 F.2d 49 (3rd Cir. 1984), cert. denied, U.S. , 105 S.Ct. 786, 83 L.Ed.2d 780 (1985).

Appellants argue that the Pennsylvania Wiretap Act has been drawn more broadly than Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, which preempted the right of individual states to enact less restrictive legislation,*fn2 and that the Pennsylvania Act, therefore, is in violation of the Supremacy Clause of Article VI, Section 2 of the United States Constitution. The Pennsylvania Statute is less restrictive, they contend, because it (1) delegates authority to request wiretap orders to deputy attorney generals and assistant district attorneys, (2) expands upon Title III's list of crimes in which a wiretap may be used to facilitate investigation, and (3) has less stringent requirements concerning minimization of the interception of nonpertinent communications.

The arguments pertaining to the delegation of authority to "assistants" and the listing of crimes need not detain us. The application for wiretap in this case was made by the District Attorney of Lycoming County and not

[ 345 Pa. Super. Page 389]

    by a deputy. The crimes being investigated, moreover, are also crimes listed in Title III at 18 U.S.C. § 2516(2). Thus, even if portions of the Pennsylvania Act are broader than Title III, those parts of the statute are severable and do not render the entire statute unconstitutional. See: Commonwealth v. Hoffman, 263 Pa. Super. 442, 451, 398 A.2d 658, 662 (1979). If some provisions of a statute are held to be invalid, the remaining provisions are not affected thereby unless the invalid provisions are so essentially and inseparably connected with the valid provisions that they cannot be executed in accordance with the legislative intent. Department of Education v. The First School, 471 Pa. 471, 478, 370 A.2d 702, 705 (1977); 1 Pa.C.S. § 1925. If the references in 18 Pa.C.S. §§ 5708 and 5713 to "assistants" and in § 5708 to those crimes which are not listed in 18 U.S.C. § 2516(2) are deleted from the statute, the remaining provisions are clearly capable of being executed to give effect to the legislature's intent. See: United States v. Geller, supra at 1314 (18 Pa.C.S. §§ 5703 and 5704 are severable).

Title III provides that every order authorizing a wiretap shall contain a requirement that the interception be conducted so as to minimize the interception of communications not subject to seizure. It also provides that no order shall be valid, in the absence of a court approved extension, for more than thirty days. 18 U.S.C. § 2518(5).*fn3 "Minimize"

[ 345 Pa. Super. Page 390]

    is not defined, and a list of the means or methods of minimizing interceptions has not been included in Title III. This omission in the language of the statute, however, has been remedied by judicial decision which holds that minimization must be determined on a case by case basis according to what is reasonable. Scott v. United States, 436 U.S. 128, 139-140, 98 S.Ct. 1717, 1724, 56 L.Ed.2d 168, 179 (1978). In determining the reasonableness of actual minimization, a reviewing court must consider many factors, including the nature of the investigation, the scope of the criminal activity, the normal use of the telephone facility, and the patterns of nonpertinent calls. Id. at 140-141, 98 S.Ct. at 1724-1725, 56 L.Ed.2d at 179-180. The authorizing order required by Title III, however, need only contain a general order to minimize. United States v. Vento, 533 F.2d 838, 852 (3d Cir. 1976); United States v. Fino, 478 F.2d 35, 37 (2d Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974).

The Pennsylvania statute is more restrictive than Title III. The provisions of 18 Pa.C.S. § 5712(b) establish:

No order entered under this section shall authorize the interception of any wire or oral communication for a period of time in excess of that necessary under the circumstances. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this chapter by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by said order. Except as provided in subsection (c), no order entered under this section shall authorize the interception of wire or oral communications for any period exceeding 20 days. An extension or renewal of such an order may be granted for one additional period of not more than 20 days. No extension or renewal shall be granted unless an application for it is made in accordance with this

[ 345 Pa. Super. Page 391]

    section, and the judge makes the findings required by section 5710 (relating to grounds for entry of order).

It will be observed that the maximum duration of an intercept without extension is twenty days, not thirty days as allowed by the federal statute. It may also be observed that an order of authorization must include a provision that the reduction of hours of interception be used if possible as a means for minimizing, as compared to Title III's general directive to minimize. Appellants interpret the state statute's language "by making reasonable efforts . . . to reduce the hours of interception . . ." to mean that the reduction of hours of interception is sufficient minimization by itself. This, they contend, is less restrictive than Title III. We disagree with this interpretation.

A crucial factor in minimizing the interception of nonpertinent communications is the duration of the surveillance. United States v. Martin, 599 F.2d 880, 887 (9th Cir. 1979). The legislature in Pennsylvania was aware of the importance of minimization and included a provision in the Pennsylvania statute requiring a directive in each authorizing order that the number of hours of interception be reduced as much as reasonably possible. 18 Pa.C.S. § 5712(b). This provision evidences the legislature's overriding concern for an individual's right of privacy. Appellants' too literal reading of the statute is inconsistent with this legislative intent. The statute is uniformly more restrictive than Title III,*fn4 and we find no basis for concluding that the legislature intended § 5712(b) to be less restrictive than Title III. The legislature required that the hours of interception be reduced and made this a critical means for minimizing; but it was not the only method for effecting minimization. Other means are also available and must be utilized, as suggested by Scott v. United States, supra, according to the circumstances of the case. Neither Title III nor the Pennsylvania statute requires that the means

[ 345 Pa. Super. Page 392]

    for minimizing be enumerated in each order authorizing an intercept. We conclude, for these reasons, that 18 Pa.C.S. § 5712(b) is not less restrictive than Title III and passes constitutional scrutiny.

It has generally been acknowledged that legislation which authorizes electronic surveillance infringes upon the right of privacy and, therefore, must be strictly construed. See: State v. Catania, 85 N.J. 418, 427 A.2d 537 (1981); In Re: Grand Jury Investigation, 287 So.2d 43 (Fla. 1973). See also: People v. Evans, 78 Ill.App.3d 996, 34 Ill.Dec. 651, 398 N.E.2d 326 (1979). Appellants argue that a strict ...


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