these offenses might have been within the Congress's intendment of "other crimes dangerous to life, limb or property."
The legislative history of section 2516(2) indicates that Congress did not intend to authorize state wiretapping for offenses such as prostitution. The drafters of section 2516(2) explained that the list of crimes was to represent a class of major offenses that were either "intrinsically serious or * * * [were] characteristic of the operations of organized crime." Senate Report No. 1097, 90th Cong., 2d Sess., U.S. Code Cong. & Admin. News, 1968, p. 2234. With the exception of bribery and gambling, these enumerated crimes all involve harm or the substantial threat of harm to the person, a "limitation [expressly] intended to exclude such offenses as fornication and adultery" from the permissable scope of electronic surveillance. Id. at p. 2187; see People v. Shapiro, 50 N.Y.2d 747, 409 N.E.2d 897, 907, 431 N.Y.S.2d 422 (1980). Prostitution was not within Congress's intention of "other crimes dangerous to life, limb or property," particularly where, as here, there has been no allegations of associated violence or threat of violence.
The Government argues that the Pennsylvania legislature has made findings of fact, stated in the corrupt organizations statute, 18 Pa. C.S. § 911, that it considers prostitution to be a crime dangerous to life or limb. It draws this conclusion because the Pennsylvania legislature included prostitution as a "racketeering activity" within the corrupt organizations statute, see 18 Pa. C.S. § 911(h)(1)(i) [listing as a racketeering activity "Chapter 59 (relating to public decency)"], and the legislature has made the finding that organized crime operates through illegal use of violence, force and intimidation.
Furthermore, the Government argues, Pennsylvania's wiretap statute permits wiretapping for investigations of violations of the corrupt organizations statute, 18 Pa. C.S. § 5708(a)(5), thereby demonstrating the legislature's concern for the seriousness of that offense.
We cannot agree that by including prostitution among its listing of "racketeering activities" the Pennsylvania legislature can thereby transform prostitution into a crime dangerous to life or limb. While prostitution might be conduct which often may lead to violence, it is not in and of itself dangerous to life or limb. In fact, the Pennsylvania wiretap statute permits interception of wire or oral communications for investigation of violations of the prostitution statute only "where such offense is dangerous to life, limb or property . . . ." 18 Pa. C.S. § 5708(a)(2). This evidences an awareness on the part of the Pennsylvania legislature that not all prostitution crimes involve violence or physical danger. We do not think that an alleged corrupt organizations violation, where a non-violent prostitution-related offense is the underlying "racketeering activity," may be permitted to bootstrap prostitution-related conduct into the category of crimes dangerous to life or limb.
The Government has not challenged the fact that the federal wiretapping statute preempts state wiretapping provisions. However, the federal statute's grant of enabling power to the states in section 2516 makes it clear that Congress did not intend to supercede state regulation of these matters entirely. The statute recognizes that a state is free to either adopt procedures and standards more restrictive than those of the federal statute or, if it desires, to prohibit wiretapping within its borders altogether. 18 U.S.C. § 2516(2). However, any state law drawn more broadly than the federal statute runs afoul of the supremacy clause. U.S. Const. art. VI, cl. 2; see People v. Shapiro, 409 N.E.2d at 906. "Title III . . . 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." United States v. Geller, 560 F. Supp. 1309, 1312 (E.D. Pa. 1983), affm'd 745 F.2d 49 (3d Cir.), cert. denied, 469 U.S. 1109, 105 S. Ct. 786, 83 L. Ed. 2d 780 (1985). State statutes may narrow the scope of permissable state wiretapping, but may not permit state and local authorities to intercept wire and oral communications forbidden by the federal statute. Therefore, to the extent that the Pennsylvania wiretap statute authorizes wiretapping to investigate allegations of non-violent prostitution-related offenses, even if those offenses are categorized as "racketeering activities" within the corrupt organizations statute, the Pennsylvania wiretap statute contravenes 18 U.S.C. § 2516(2).
The New York Court of Appeals was presented with a quite similar situation in People v. Shapiro, 50 N.Y.2d 747, 409 N.E.2d 897, 431 N.Y.S.2d 422 (1980). Shapiro was an appeal from a criminal conviction for promoting prostitution in the first degree, endangering the welfare of a child, and second and third-degree sodomy. Id. None of the crimes involved violence or forcible coercion. Id. The New York state wiretapping permitted electronic interception for a much more encompassing range of crimes than the federal standard, including the offenses for which the defendant was under investigation and later convicted. Id.
The New York high court held in Shapiro that "the bases for the eavesdropping warrant in this case - allegations of sexual abuse and the promotion of prostitution - however violative of New York criminal law, do not come within the intendment of the Federal statute because they cannot be said to be crime[s] dangerous to life [or] limb." Id., 409 N.E.2d at 907. The decision rejected the contention that the fact that "our own State Legislature has determined that such acts presented a substantial danger to life and limb override[s] the considered judgment of Congress that they did not." Id., 409 N.E.2d at 907-908. "The [federal] standard may not be expanded beyond the contemplation of the drafters to include within its sweep more subtle forms of personal injury, for example, any deleterious psychic consequences to minors that may result from their participation in such practices." Id., 409 N.E.2d at 908. The court reversed Shapiro's conviction on the grounds that the evidence gleaned from the illegal wiretaps should have been suppressed. Id.
B. Is An IRS Criminal Investigation Interrogation A "Proceeding" Under Section 2518(10)(a) ?
Section 2518(10)(a) permits an "aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States" to move to suppress the contents of unlawfully intercepted communications, "or evidence derived therefrom." 18 U.S.C. § 2518(10)(a) [emphasis added]. The Government argues that responding to a summons for documents and testimony from an IRS Criminal Division special agent does not amount to a "proceeding" within the meaning of section 2518(10)(a). They therefore take the position that there is no statutory authority to suppress the use of evidence tainted by the invalid state wiretap, leaving the respondents without a "just cause" defense to contempt of court.
Neither the section nor its legislative history define "proceeding" as used in section 2518(10)(a). The Government urges this Court to look to the legislative history for section 2518(9), which requires that notice be given of the intent to use the contents of any intercepted communication at least ten days before a "trial hearing or proceeding." 18 U.S.C. § 2518(9). The Senate Report for section 2518(9) gives this definition for proceedings at which such notice must be given:
"Proceeding" is intended to include all adversary type hearings. It would include a trial itself, a probation revocation proceeding, or a hearing on a motion for reduction of sentence. It would not include a grand jury hearing . . . .