





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.
-----------------------
      [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).

