State of Indiana v. John Lombardo

Attorneys for Appellant

Jeffrey A. Modisett

Attorney General of Indiana

Greg Ullrich

Deputy Attorney General

Indianapolis, IN

Attorney for Appellee

Robert G. Forbes

Forcum & Forbes LLP

Hartford City, IN

IN THE

INDIANA SUPREME COURT

STATE OF INDIANA,

Appellant (Plaintiff below),

v.

JOHN LOMBARDO,

Appellee (Defendant below).

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) Supreme Court No.

) 38S00-9902-CR-111

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APPEAL FROM THE JAY CIRCUIT COURT

The Honorable Kenneth Sullivan, Special Judge

Cause No. 38C01-9707-CF-25

ON DIRECT APPEAL

November 3, 2000

SULLIVAN, Justice.

Defendant John Lombardo was charged with the unlawful interception of

a telephonic communication for secretly tape recording his estranged wife’s

telephone conversations. The trial court dismissed the charge, finding the

Indiana Wiretap Act was unconstitutionally vague because it did not clearly

define the conduct prohibited. We hold that Indiana’s Wiretap Act is

constitutional and that there is no constitutional bar to its application

in this case.

Background

Both federal and state statutes prohibit the use of wiretapping and

electronic surveillance except in certain circumstances. See 18 U.S.C. §§

2511-2519 (1988) (“Federal Wiretap Act”); Ind. Code §§ 35-33.5-1-1 through

35-33.5-5-6 (1993) (“Indiana Wiretap Act.”). This case arises under the

Indiana Wiretap Act but requires reference to the Federal Wiretap Act as

well.[1]

On January 16, 1998, the State filed an amended information charging

John Lombardo with the unlawful interception of a telephonic communication,

a class C felony, under Indiana Code § 35-33.5-5-5. The State alleged

that between October, 1996, and March, 1997, Lombardo had placed a

recording device at the home of his estranged wife, Connie, to intercept

and record telephone conversations between her and a third person without

the consent of either party. Connie apparently had found a hidden tape

recorder wired to the telephones in the home and also heard Lombardo state

that he had several tapes of conversations between her and third parties.

On March 2, 1998, Lombardo filed a motion to dismiss the amended

information, advancing several arguments but primarily claiming that the

Indiana Wiretap Act did not adequately forewarn the conduct prohibited. On

December 30, 1998, the trial court granted Lombardo’s motion to dismiss the

charge, finding the Indiana Wiretap Act unconstitutionally vague on its

face and as applied in this case. The State appeals these rulings. This

Court has exclusive jurisdiction over this case pursuant to Indiana

Appellate Rule 4(A)(8).[2]

Discussion

In charging Lombardo with the unlawful interception of a telephonic

communication, the State acted pursuant to these provisions of the Indiana

Wiretap Act:

(a) This section does not apply to a person who makes an

interception authorized under federal law.

(b) A person who knowingly or intentionally intercepts, a

communication in violation of this article commits unlawful

interception, a Class C felony.

(c) A person who, by virtue of the person’s employment or

official capacity in the criminal justice system, knowingly or

intentionally uses or discloses the contents of an interception in

violation of this article commits unlawful use or disclosure of an

interception, a Class C felony.

Ind. Code § 35-33.5-5-5 (1993) (emphases added). The statute defines the

“interception” of a wire or electronic communication as follows:

“Interception” means the intentional:

(1) recording of; or

(2) acquisition of the contents of;

a telephonic or telegraphic communication by a person other than

a sender or receiver of that communication, without the consent of the

sender or receiver, by means of any instrument, device, or equipment

under this article. This term includes the intentional recording of

communication through the use of a computer or a FAX (facsimile

transmission) machine.

Id. § 35-33.5-1-5 (emphasis added).

Lombardo contends, and the trial court agreed, that this statutory

scheme is unconstitutionally vague in several respects in that “a person of

ordinary intelligence is unable to determine the conduct prohibited.”

Appellee’s Br. at 3; see also Order of Dismissal at 1 (“[T]he Statute IC 35-

33.5-1-1 through IC 35-33.5-5-6 as written [is] unconstitutionally vague,

because the statute doesn’t clearly define what conduct is prohibited and

is not understandable by a person of ordinary intelligence.”) (R. at

136.)[3]

When the validity of a statute is challenged, we begin with a

“presumption of constitutionality.” State v. Downey, 476 N.E.2d 121, 122

(Ind. 1985) (quoting Sidle v. Majors, 264 Ind. 206, 209, 341 N.E.2d 763,

766 (1976)) (upholding the constitutionality of Indiana’s dependant neglect

statute under a void for vagueness challenge), reh’g denied. The burden to

rebut this presumption is upon the challenger, and all reasonable doubts

must be resolved in favor of the statute’s constitutionality. See id.

A statute will not be found unconstitutionally vague if individuals of

ordinary intelligence would comprehend it adequately to inform them of the

proscribed conduct. See id. The statute “need only inform the individual

of the generally proscribed conduct, [and] need not list with itemized

exactitude each item of conduct prohibited.” Id. Finally, “‘it is well

established that vagueness challenges to statutes which do not involve

First Amendment freedoms must be examined in light of the facts of the case

at hand.’” Davis v. State, 476 N.E.2d 127, 130 (Ind. Ct. App. 1985)

(quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)), transfer

denied.

I

Lombardo first contends that the Act is impermissibly vague because

the statutory scheme under which he was charged is “contradictory as to the

degree of culpability required.” Appellee’s Br. at 4.

We acknowledge that the Act is internally inconsistent: The highest

degree of culpability – “intentional” – is used to define an “interception”

under Indiana Code § 35-33.5-1-5, while a lesser degree of culpability –

“knowingly or intentionally” – is included in defining the statutory crime

under Indiana Code § 35-33.5-5-5. Nevertheless, “‘[w]hen a statute can be

construed to support its constitutionality, such construction must be

adopted.”’ In re Tina T., 579 N.E.2d 48, 56 (Ind. 1991) (quoting Miller v.

State, 517 N.E.2d 64, 71 (Ind. 1987)).

Here, Lombardo does not claim that he acted with the lesser

culpability of “knowingly”;[4] instead, he broadly claims that “a person of

ordinary intelligence [cannot] be said to have been given fair notice” as

to what degree of culpability is required. Appellee’s Br. at 5. We

disagree and find that a person of ordinary intelligence would know, under

any reasonable interpretation, that the act of wiring a tape recorder under

a house to record secretly another’s conversations is an “intentional” act

clearly prohibited under the Act’s current statutory scheme.

That being said, we accept the State’s suggestion[5] to construe

strictly the Indiana Wiretap Act in future cases to eliminate the lesser

culpability of “knowingly,” so that in charging and prosecuting individuals

under Indiana Code § 35-33.5-5-5(b), the State will henceforth be required

to prove intentional conduct. Cf. State v. McGraw, 480 N.E.2d 552, 553

(Ind. 1985) (providing that penal statutes must be strictly construed

against the State).

II

Lombardo next contends that the Act is unconstitutionally vague

because it “do[es] not outlaw all recordings but only those recordings

accomplished by means of certain instruments, devices or equipment which

are supposed to be, but never are, delineated except for two . . . machines

which do not apply in this instance.” Appellee’s Br. at 2.

For ease of review, we again reproduce the statutory definition of

“interception:”

“Interception” means the intentional:

(1) recording of; or

(2) acquisition of the contents of;

a telephonic or telegraphic communication by a person other than

a sender or receiver of that communication, without the consent of the

sender or receiver, by means of any instrument, device, or equipment

under this article. This term includes the intentional recording of

communication through the use of a computer or a FAX (facsimile

transmission) machine.

Ind. Code § 35-33.5-1-5 (1993) (emphases added).

Lombardo claims that a literal reading of the statute allows for

someone lawfully to “intercept” a communication with a tape recorder

because the Act only prohibits recordings obtained “by means of any

instrument, device or equipment under this article,” Ind. Code 35-33.5-1-5

(emphases added), and the only two devices listed in the article are “a

computer or a FAX,” id.

A more reasoned interpretation is that the phrase “under this article”

limits the definition of “interception” to an application under Indiana’s

Wiretap Act, as opposed to, say, an application under Title 6 of Indiana

Code on taxation where the term “interception” is used in a similar

context. See Ind. Code 6-8.1-3-2.2(c) (1990) (“As used in this section,

‘surveillance’ means the monitoring of a person, place, or event by: (1)

electronic interception; (2) overt or covert observations; (3) photography;

or (4) the use of informants.”) (emphasis added). Therefore, we adopt this

logical construction and hold that an interception under the Act can be

accomplished “by means of any instrument, device, or equipment.”

We also find that an individual of ordinary intelligence – without the

benefit of this analysis – could easily comprehend the Act to include a

tape recorder, which is the most common device used to intercept telephonic

communications.

III

Lombardo lastly contends that the Act is unconstitutionally vague

because it “incorporate[s] federal law as an exception but the federal law

is so unclear on the issue of an exception for the marital residence that

it makes the state law too vague.” Appellee’s Br. at 2.

His argument is essentially this: First, the Indiana Wiretap Act

incorporates federal wiretap law.[6] Second, federal wiretap law includes

case law and the federal circuits are split on whether the Federal Wiretap

Act outlaws intercepting the telephone communications of one’s spouse

within the marital home.[7] Third, because of the conflict among the

circuits, a person of common intelligence cannot know whether or not

intercepting the telephone communications of one’s spouse within the

marital home is authorized under federal law. This, he concludes, renders

the statute unconstitutionally vague, at least as applied to his situation.

We reject Lombardo’s premise that the language of the Indiana Wiretap

Act on which he relies – “[t]his section does not apply to a person who

makes an interception authorized under federal law” – incorporates federal

case law interpreting the Federal Wiretap Act into the Indiana Wiretap Act.

Instead, we find that the provision serves to provide the exemption

required by the Supremacy Clause for any wiretapping conducting by law

enforcement under the federal act that would be prohibited under the

Indiana Act.

Some background on the two statutes makes this clear. In 1968,

Congress enacted the Federal Wiretap Act (Title III of the Omnibus Crime

Control and Safe Streets Act, 18 U.S.C. § 2510 et seq.). The Federal

Wiretap Act authorized federal and state law enforcement officers to use

wiretaps (for recording wire communications) and bugs (for recording oral

communications) in criminal investigations pursuant to a properly issued

court order administered in compliance with specific guidelines. See 18

U.S.C. §§ 2511-2519 (1988). While Congress did not preempt all state

regulatory authority in this area, see id. § 2516(2) (implicitly

authorizing states to adopt their own wiretap statutes),[8] the legislative

history underlying the Federal Wiretap Act indicates that the drafters did

intend to establish minimum privacy standards for any state statutes that

would follow, see S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968

U.S. Code Cong. & Admin. News 2180, 2187 (“The State statute must meet the

minimum standards reflected as a whole in the proposed chapter. The

proposed provision [§ 2516(2)] envisions that States would be free to adopt

more restrictive legislation, or no legislation at all, but not less

restrictive legislation.”).

In 1990, the General Assembly passed the Indiana Wiretap Act (Pub. L.

No. 161, 1990 Ind. Acts 2161 (codified as amended at Ind. Code §§ 35-33.5-1-

1 through 35-33.5-5-6 (1998)), which provided for the “interception of

telephonic or telegraphic communications relevant to the investigation or

prosecution of felonies pertaining to the Indiana controlled substance

statutes,” H.B. 1093, 106th General Assembly, 2d Sess. (1990) (digest of

bill).[9]

Unlike those states that essentially copied the language of the

Federal Wiretap Act,[10] and others that adopted the Federal Wiretap Act

language with only minor changes,[11] Indiana’s statutory scheme largely

stands on its own. But there are important similarities between Indiana’s

Wiretap Act and the Federal Wiretap Act. Both provide criminal penalties

for the unauthorized interception of a wire or electronic communication

without the consent of at least one of the participants.[12] See Ind. Code

§ 35-33.5-1-5; 18 U.S.C. § 2511(2)(d). Indiana also follows the federal

format in exempting certain entities and individuals – in addition to law

enforcement – from the imposition of criminal and civil penalties. Compare

18 U.S.C. § 2511(2) (exempting switchboard operators, communications

carrier personnel, FCC personnel, etc.), with Ind. Code § 35-33.5-1-1

(providing that the Act “does not apply to the ordinary course of business

pertaining to the operation of a telephone or telegraph corporation”); and

id. § 35-33.5-5-4 (providing journalists with an affirmative defense to

civil liability in certain situations).

On the other hand, the Federal Wiretap Act also provided that states

were “free to adopt more restrictive legislation,” see S. Rep. No. 1097

and, in fact, that is what Indiana lawmakers appear to have done. For

example, the Indiana Wiretap Act does not appear to authorize law

enforcement to “intercept” an oral communication through the use of

eavesdropping equipment or bugs. But in adopting more restrictive

legislation, our legislature could not ignore the potential for conflict

under the Supremacy Clause[13] between Indiana’s Wiretap Act, which

criminalizes certain overly intrusive police activities,[14] and the

Federal Wiretap Act, which authorizes different types of federal

interceptions within Indiana’s borders. Viewed in this manner, the

legislature’s exemption of interceptions “authorized under federal law”

from the strictures of Indiana law amounts to no more than state wiretap

law immunization of federal law enforcement surveillance activities within

Indiana. Cf. State v. Stockfleth, 804 P.2d 471, 477-78 (Or. 1991)

(analyzing the state legislative history which identified the need to

“attempt to bring Oregon law into line with federal law in order to give

law enforcement personnel a single set of guidelines and thus to remove the

potential for a wiretap authorized in Oregon to be a violation of federal

law”).

In holding that the Indiana Act does not incorporate by reference

federal case law on intercepting the telephone communications of one’s

spouse within the marital home, we note that we have not been asked to

express any opinion, and we do not, as to whether the wiretapping at issue

in this case occurred in the marital home or as to whether there is a

marital home exception implicit in the Indiana Wiretap Act.

Conclusion

In summary, we conclude that: (1) the Indiana Wiretap Act is

sufficiently clear and definite to warn a person of ordinary intelligence

that the act of intentionally wiring a hidden tape recorder to document the

private telephone conversations between a spouse and third-parties, without

their knowledge or permission, is prohibited under the Act; (2) the State

will henceforth be required to prove intentional conduct in charging and

prosecuting individuals under Indiana Code § 35-33.5-5-5(b); (3) an

interception under the Act can be accomplished “by means of any instrument,

device, or equipment”; (4) our legislature did not intend to directly

incorporate the Federal Wiretap Act statutory or case law into Indiana’s

Act but instead meant to exempt from its provisions federal law enforcement

surveillance activities within Indiana’s borders.

The judgment of the trial court declaring the Indiana Wiretap Act

unconstitutional is reversed, and this case is remanded to the trial court

for further proceedings consistent with this opinion.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

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[1] This is a case of first impression in Indiana. We have not

previously construed the scope of the Indiana’s Wiretap Act. Previous

decisions from this Court and the Court of Appeals construing the Federal

Wiretap Act analyzed it prior to passage of Indiana’s Act, see In re

Marriage of Lopp, 268 Ind. 690, 378 N.E.2d 414 (1978), cert. denied, 439

U.S. 1116 (1979); Jacks v. State, 271 Ind. 611, 394 N.E.2d 166 (1979);

Wells v. Wells, 489 N.E.2d 972 (Ind. Ct. App. 1986), or construed only the

Federal Wiretap Act, see Hamed v. Pfeifer, 647 N.E.2d 669 (Ind. Ct. App.

1995).

[2] Indiana Appellate Rule 4(A)(8) provides: “The Supreme Court shall

have exclusive jurisdiction of . . . [a]ppealable cases where a state or

federal statute has been declared unconstitutional in whole or in part.”

[3] It is not clear from the order of dismissal (R. at 136-37) whether

the trial court found the Act to be unconstitutionally vague under the

United States Constitution, the Indiana Constitution, or both. Here,

neither party has presented a separate argument based on the Indiana

Constitution.

[4] Indiana defines the different levels of culpability as follows:

(a) A person engages in conduct “intentionally” if, when he

engages in the conduct, it is his conscious objective to do so.

(b) A person engages in conduct “knowingly” if, when he engages

in the conduct, he is aware of a high probability that he is doing so.

(c) A person engages in conduct “recklessly” if he engages in

the conduct in plain, conscious, and unjustifiable disregard of harm

that might result and the disregard involves a substantial deviation

from acceptable standards of conduct.

(d) Unless the statute defining the offense provides otherwise,

if a kind of culpability is required for commission of an offense, it

is required with respect to every material element of the prohibited

conduct.

Ind. Code § 35-41-2-2 (1993).

[5] See Appellant’s Reply Br. at 2 (“By eliminating the ‘knowingly’

culpability from the statute, no person of ordinary intelligence could fail

to understand the statute as applying to intentional conduct, that is,

intentional use of a recording device to intentionally intercept a

communication.”).

[6] He draws this conclusion from the subsection of the Indiana Act

that provides, “This section does not apply to a person who makes an

interception authorized under federal law.” Ind. § 35-33.5-5-5(a)

(emphases added).

[7] Four federal circuits have held that the Federal Wiretap Act does

not immunize interspousal wiretaps. See Heggy v. Heggy, 944 F.2d 1537,

1538 (10th Cir. 1991) (holding that the Federal Wiretap Act “does apply to

interspousal wiretapping within the marital home”), cert. denied, 503 U.S.

951 (1992)); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir. 1989) (holding

that “the conduct of a spouse in wiretapping the telephone communications

of the other spouse within the marital home, falls within [the Federal

Wiretap Act’s] purview”); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th

Cir. 1984) (stating that there is no “indication in the statutory language

or in the legislative history that Congress intended to imply an exception

to facts involving interspousal wiretapping”); United States v. Jones, 542

F.2d 661, 673 (6th Cir. 1976) (holding that “the plain language of [§ 2511]

and the [the Federal Wiretap Act’s] legislative history compels

interpretation of the statute to include interspousal wiretaps”).

Two federal circuits have held that Title III does immunize

interspousal wiretaps. See Simpson v. Simpson, 490 F.2d 803, 805 (5th Cir.

1974) (“The naked language of [the Federal Wiretap Act], by virtue of its

inclusiveness, reaches this case. However, we are of the opinion that

Congress did not intend such a far-reaching result, one extending into

areas normally left to states, those of the marital home and domestic

conflicts.”), cert. denied, 419 U.S. 897 (1974)); Anonymous v. Anonymous,

558 F.2d 677, 679 (2d Cir. 1977) (holding that the wiretap in question did

not rise to the level of criminal conduct proscribed by the Federal Wiretap

Act in that it was “a purely domestic conflict[,] a dispute between a wife

and her ex-husband over the custody of their children[, and] a matter

clearly to be handled by the state courts”).

While the Seventh Circuit has yet to take a definitive position, it

did identify this split of authority in Scheib v. Grant, 22 F.3d 149, 153

n.2 (7th Cir.) (citing the same cases except Anonymous), cert. denied, 513

U.S. 929 (1994).

[8] See also 18 U.S.C. § 2519(2) (requiring the principal prosecuting

attorney for any political subdivision of a state that has a statute

authorizing communications intercepts to submit to the Administrative

Office of the United States Courts all specific information on intercepted

wire, oral, or electronic communications).

[9] Hoosier law enforcement has apparently only sparingly utilized

Indiana’s Wiretap Act since its passage in 1990. Only a handful of

interception warrant reports have been filed with the Legislative Council

pursuant to Indiana Code § 35-33.5-2-4, and the State Court Administration

pursuant to Indiana Code § 35-33.5-2-5 and Criminal Rule 25.

[10] These states are: Florida, Hawaii, Minnesota, Nebraska, North

Dakota, Tennessee, Virginia, West Virginia, and Wisconsin. See Stacy L.

Mills, Note, He Wouldn’t Listen To Me Before, But Now . . . : Interspousal

Wiretapping and an Analysis of State Wiretapping Statutes, 37 Brandeis L.J.

415, 427-28 & n.116 (1998).

[11] These states substitute the words “purposely,” “knowingly,” or

“willfully” for “intentionally”: Idaho, Louisiana, Missouri, New

Hampshire, New Jersey, North Carolina, Ohio, and Oklahoma. See id. at 428

& n.118.

[12] Several states require the wiretapper to obtain the consent of

all communicating parties to avoid punishment. See Perry v. State, 741

A.2d 1162, 1197 & n.3 (Md. 1999) (Cathell, J., dissenting) (“My research

indicates that there are ten states, including Maryland, that require

consent of all parties to an intercepted telephone communication. They

include Connecticut, Delaware, Florida, Illinois, Massachusetts, Michigan,

Montana, New Hampshire and Pennsylvania. In addition, California and

Washington require such consents in civil cases.”) (citing Carol M. Bast,

What’s Bugging You? Inconsistencies and Irrationalities of the Law of

Eavesdropping, 47 DePaul L. Rev. 837 (1998)); see also Mills, supra note

10, at 429 & n.127 (listing the same states).

[13] U.S. Const., art. VI, cl. 2.

[14] See Ind. Code § 35-33.5-5-5(c) (“A person who, by virtue of the

person’s employment or official capacity in the criminal justice system,

knowingly or intentionally uses or discloses the contents of an

interception in violation of this article commits unlawful use or

disclosure of an interception, a Class C felony.”) (emphasis added).