United States v. Geller

• Decision Date: 06 April 1983
• Docket Number: Crim. No. 82-224.
• Citation: 560 F. Supp. 1309
• Parties: 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.
• Court: U.S. District Court — Eastern District of Pennsylvania

560 F. Supp. 1309

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.

Crim. No. 82-224.

United States District Court, E.D. Pennsylvania.

April 6, 1983.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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William B. Carr, Jr., Elizabeth Ainslie, Asst. U.S. Attys., Philadelphia, Pa., for plaintiff

R.B. Mozenter, Philadelphia, Pa., for Geller.

R.S. Robbins, Philadelphia, Pa., for Weiner.

Jeffrey Miller, Philadelphia, Pa., for L. DeMaise.

D.M. Moser, Philadelphia, Pa., for DeAngelis.

E.H. Weis, Philadelphia, Pa., for Peck.

D.B. Huyett, Reading, Pa., for J. DeMaise.

Theodore Simon, Philadelphia, Pa., for Newell.

R.D. Atkins, Philadelphia, Pa., for Samuels.

S. LaCheen, Philadelphia, Pa., for Goldstein.

MEMORANDUM

TROUTMAN, District Judge.

Defendants¹, 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" on 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

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constitution because it purportedly creates a constitutional imbalance, see e.g., Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (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.²

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, 92 S.Ct. 1029, 1032, 31 L.Ed.2d 349 (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, ___ Pa.Super. ___, 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

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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...