State of Indiana v. John Lombardo ( 2000 )


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  • 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).
    )
    )     Supreme Court No.
    )     38S00-9902-CR-111
    )
    )
    )
    )
    )
    )
    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).