Wallman v. State, 1-1080A289

• Decision Date: 12 May 1981
• Docket Number: No. 1-1080A289,1-1080A289
• Citation: 419 N.E.2d 1346
• Parties: Lawrence W. WALLMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1346

419 N.E.2d 1346

Lawrence W. WALLMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-1080A289.

Court of Appeals of Indiana, First District.

May 12, 1981.

Richard L. Tandy, George E. Purdy, Van Valer, Wicker & Tandy, Greenwood, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Defendant-appellant Lawrence W. Wallman appeals his conviction by the Sullivan County Court of possession of a portable police radio.

We reverse.

STATEMENT OF THE FACTS

On December 5, 1979, Indiana State Police Trooper Jerry W. Cliver was patrolling southbound U. S. Highway 41 one-tenth mile west of Sullivan, Indiana. Using his K55 radar unit, he clocked a truck travelling north at seventy-seven miles per hour. After turning his vehicle around, Trooper Cliver pursued the north-bound truck. As he approached the truck he came upon an automobile driven by Lawrence W. Wallman of Indianapolis. Trooper Cliver observed a light on a box on the dashboard of Wallman's automobile, directly below the rearview mirror. He motioned Wallman and the truck driver to the side of the road. Trooper Cliver arrested Wallman and confiscated a radar detection device from Wallman's automobile.

Wallman was charged with possession of a portable police radio, a Class B misdemeanor, and was released on bond. He was convicted in a trial before the Sullivan County Court and was fined $10.00 plus court costs.

STATEMENT OF THE ISSUE

Wallman has raised a number of issues on appeal, but we need consider only one issue inasmuch as it is dispositive of this case: Whether the trial court erred in overruling Wallman's motion to dismiss the information, because the statute under which he was charged, Ind.Code 35-44-3-12, is unconstitutionally vague.

DISCUSSION AND DECISION

Indiana Code 35-44-3-12 provides as follows:

"35-44-3-12 Unlawful use of a police radio; exemptions; 'portable police radio' defined

"Sec. 12. (a) A person who knowingly or intentionally possesses a portable police radio commits unlawful use of a police radio, a Class B misdemeanor.

"(b) This section does not apply to:

(1) a governmental entity;

(2) a regularly employed law enforcement officer;

(3) a common carrier of persons for hire whose vehicles are used in emergency service;

(4) a public service or utility company whose vehicles are used in emergency service;

(5) a person who has written permission from the chief executive officer of a law enforcement agency to possess a portable police radio;

(6) a person who holds an amateur radio license issued by the Federal Communications Commission;

(7) a person who uses a portable police radio only in his dwelling or place of business;

(8) a person:

(A) who is regularly engaged in news-gathering activities;

(B) who is employed by a newspaper qualified to receive legal advertisements under IC 5-3-1, a wire service, or a licensed commercial or public radio or television station; and

(C) whose name is furnished by his employer to the chief executive officer of a law enforcement agency in the county in which the employer's principal office is located; or

(9) a person engaged in the business of manufacturing or selling portable police radios.

"(c) 'Portable police radio' means a radio receiving set that is capable of receiving signals transmitted on frequencies assigned by the Federal Communications Commission for police emergency purposes and that:

(1) can be installed, maintained, or operated in a vehicle; or

(2) can be operated while it is being carried by an individual.

The term does not include a radio designed for use only in a dwelling."

Prior to trial, Wallman moved to dismiss the information on the grounds, among others, that IC 35-44-3-12 is unconstitutionally vague or, alternatively, that the facts stated in the information did not charge a crime, because a radar detection device does not fall within the purview of the statute. Wallman introduced evidence at the hearing on the motion to dismiss which showed that his radar detection device was designed to respond to transmissions at 10.50 to 10.525 GHz (gigahertz) and at 24.15 GHz. He argued that Federal Communications Commission regulations, as found in the Code of Federal Regulations, are difficult for persons of average intelligence to interpret, do not refer to the term "police emergency purposes" which is used in IC 35-44-3-12(c), and allocate the frequencies to which Wallman's radar detection device is designed to respond to both governmental and non-governmental uses. The state introduced evidence showing that the F.C.C. had authorized the Indiana State Police to use the frequency 10.525 MHz (megahertz) (10.525 GHz) in its mobile radiolocation transmitters. The trial court overruled Wallman's motion to dismiss.

A penal statute such as IC 35-44-3-12 must be strictly construed against the state, but the statute must not be construed so narrowly as to exclude cases fairly covered by it. Cape v. State, (1980) Ind., 400 N.E.2d 161; State v. Bigbee, (1973) 260 Ind. 90, 292 N.E.2d 609. A statute is presumed to be constitutional, and that presumption continues until it is clearly overcome by a showing that it is unconstitutional. Hall v. State, (1980) Ind., 403 N.E.2d 1382. The requirement that a penal statute be narrowly construed must be balanced against the presumption in favor of the statute's constitutionality. State v. Bigbee, supra. If the language of a statute supports a construction which is constitutional, then that construction must be adopted. Progressive Improvement Association v. Catch All Corp., (1970) 254 Ind. 121, 258 N.E.2d 403; State v. Clements, (1939) 215 Ind. 666, 22 N.E.2d 819.

The Due Process Clause of the Fourteenth Amendment to the Constitution of the United States has been held to prohibit vagueness in penal statutes. ¹ In Sumpter v. State, (1974) 261 Ind. 471, 476, 306 N.E.2d 95, appeal dismissed 419 U.S. 811, 95 S.Ct. 25, 42 L.Ed.2d 38, our Supreme Court said: "Penal statutes, in order to satisfy due process requirements, must be sufficiently explicit so as to adequately inform individuals of ordinary intelligence of the consequences of their contemplated conduct." Stated another way, "a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." Baggett v. Bullitt, (1964) 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377; Grody v. State, (1972) 257 Ind. 651, 278 N.E.2d 280; Griffin v. State, (1976) 171 Ind.App. 543, 357 N.E.2d 917, trans. denied (1977). The Supreme Court of the United States explained the policy behind the proscription of vague laws as follows:

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to ' "steer far wider of the unlawful zone" ' ... than if the boundaries of the forbidden areas were clearly marked." (Footnotes omitted.)

Grayned v. City of Rockford, (1972) 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222.

Wallman contends on appeal that IC 35-44-3-12 is void for vagueness in that it relies upon federal regulations for the definition of the criminal activity the Indiana statute prohibits and the F.C.C. regulations do not use the term "police emergency purposes," which is used in IC 35-44-3-12(c) in the definition of "portable police radio." Alternatively, Wallman asserts that, assuming IC 35-44-3-12 is not void for vagueness, the statute does not apply to his case, because the frequencies on which his radar detection device operates have been assigned for both governmental and non-governmental use ² and have not been assigned for "police emergency purposes."

The state has thoughtfully examined dictionary definitions ³ of terms such as "radio," "radar," "signal," and "emergency," and the F.C.C. definitions ⁴ of "radio," "radar," and "radiodetermination." According to the state, a signal is the "sound, image, or message transmitted or received in telegraphy, telephony, radio, television, or radar." ⁵ When synthesized, these various definitions indicate that radar is a radiodetermination system, i. e., a means of using radio waves to determine the position or velocity of an object. The state agrees with the trial court's finding that the key to the determination of this issue is the use of the term "signals" in IC 35-44-3-12(c) and that the alleged vagaries in the statute are merely semantic disputes. The state maintains that IC 35-44-3-12 is sufficiently clear to make an ordinary person interested in buying a radar detection device aware of potential violations and to enable him to ask informed questions of the manufacturer, the dealer, or the F.C.C.

We are aware of only three other reported cases which have involved similar challenges to similar statutes. In People v. Faude, (1976) 88 Misc.2d 434, 388 N.Y.S.2d 562, a justice's court dismissed the charge on the grounds that the statute...