State v. McVeighState v. McVeigh
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- Borden
Lead Opinion
The dispositive issue in these consolidated appeals is whether a communication over the radio wave portion of a cordless telephone is a “[w]ire communi*595cation” as defined in
*596The defendants claim that the trial court improperly-concluded that their conversations over a cordless telephone in their home were: (1) not protected by the provisions of the wiretap act because they were not wire communications within the meaning of the act; and (2) not protected by the fourth amendment to the United States constitution or by article first, § 7 of the Connecticut constitution.5 Without reaching the constitutional issues, we conclude that the communications *597at issue were “[w]ire communication^]” within the meaning of
In the trial court, the defendants moved to suppress the contents of their communications made over their cordless telephone, and all the evidence derived therefrom. The bases of the motions were that the electronic interception by the police of the defendants’ cordless telephone conversations: (1) violated the wiretap act; and (2) violated their constitutional rights under the fourth and fourteenth amendments to the United States constitution and article first, § 7 of the Connecticut constitution.
The trial court found the following facts: The defendants lived at a condominium complex in Cromwell. On February 22, 1990, the Cromwell police department began to investigate the defendants as a result of information furnished to the police by a neighbor of the defendants. The neighbor told the police that, by means of a device known as a “scanner,” he had overheard cordless telephone conversations of the defendants that indicated they were involved in drug dealing.
As a result of this information, the police decided to monitor the incoming and outgoing cordless telephone calls of the defendants by means of a “Bearcat Scanner” and a voice activated tape recorder, stationed within the neighbor’s apartment. The tape recorder was connected to the scanner, so that whenever a voice came over the scanner it would be automatically tape-recorded.
Between February 23 and March 3,1990, the police, without having secured a judicial order pursuant to the wiretap act, monitored and tape-recorded the defendants’ cordless telephone conversations, using the scan*598ner and the tape recorder. In addition, the police conducted visual surveillance of the defendants’ condominium. On March 2, 1990, the police, using information gained from their monitoring of the defendants’ cordless telephone conversations, stopped a Chevrolet van being driven by William McVeigh from the condominium complex, arrested him and seized drugs from his person. Thereafter, the police secured a search and seizure warrant for the defendants’ condominium and for a certain automobile. Execution of this warrant yielded more drugs from the condominium and from the automobile.
The trial court also found the following undisputed facts regarding the operation of cordless telephones. A cordless telephone operates as an FM6 two-way radio. The handset transmits an FM radio signal to the base unit, and the base unit transmits an FM radio signal to the handset. Both the handset and the base unit have antennae. Transmission of the human voice occurs through these FM radio waves. When a telephone call is initiated from the handset of a cordless telephone, it travels from the handset to the base unit via radio waves; from the base unit it travels through the telephone lines. Thus, the telephone lines are used only after a message leaves the base unit.
Although the trial court did not specifically make findings regarding incoming telephone calls, the same physical principles apply to such calls. If a telephone call is made to a number serviced by a cordless telephone and the cordless telephone is used to receive that call, the message travels through the telephone lines to the base unit; from there it travels via FM radio waves to the handset.
*599It is also undisputed that, except for the transmission between the base unit and the handset, a cordless telephone operates essentially like an ordinary wired telephone.7 The base unit is connected to the telephone line by a wire that runs from the base unit and plugs into an ordinary telephone jack. That wire usually is furnished with the purchase of the cordless telephone. A person initiating a telephone call on a cordless telephone dials (or, more accurately, enters) a telephone number, either on the handset or the base unit; the message travels from the handset to the base unit, from the base unit to the telephone jack through the wire connecting the base unit and the jack, and from there through the telephone lines. Similarly, if a person calls a telephone number that is serviced, in whole or in part, by a cordless telephone, the message travels from the calling telephone through the telephone lines to the jack, from the jack to the base unit through the wire connected to the base unit, and from there to the handset via radio waves. Thus, whereas in an ordinary wired telephone set the message travels between the base unit and the handset by way of the wire that connects the two, in a cordless telephone set the message travels between the base unit and the handset by way of FM radio waves.
The trial court found that FM radio waves travel at various frequencies ranging from forty-six to forty-nine megahertz.8 Cordless telephones are preset by their manufacturers to given frequencies within this range, *600and are also equipped with digital security codes in order to allow an owner to alter the frequency slightly so as to avoid the frequency being received by a nearby cordless telephone that is set to the same frequency.9 The trial court also found that a cordless telephone has a maximum range of approximately 1000 feet.10
The trial court further found that any person with an FM receiver tuned to the same frequency as a particular cordless telephone can overhear telephone calls going out or coming in over that cordless telephone if the receiver is within the range of that telephone. A *601“Bearcat Scanner,” which was used by the police in this case, is an FM radio that can be programmed to receive almost any FM frequency. Anyone can purchase such a scanner.11 The interception of a cordless telephone conversation by such a scanner occurs during the radio wave transmission portion of the conversation, and does not involve that portion of the transmission that travels over the telephone line.
Cordless telephones are stamped with a warning on the bottom of the base unit. The warning on the bottom of the defendants’ base unit stated: “This cordless telephone operates under part 15 of the [Federal Communications Commission] Rules.12 Privacy of communications may not be insured when using this phone.”
Finally, although there was no specific evidence produced in this regard, there is no dispute that cordless telephones are in widespread use today. The defendants bring to our attention, without contradiction by the state, that approximately forty-three million cord*602less telephones were sold between 1988 and 1991, that the industry estimated sales of nearly sixteen million units in 1992, and that it also estimates that 41 percent of the approximately ninety-five million households in the nation have cordless telephones.
The trial court ruled that the interception of the defendants’ conversations over their cordless telephone: (1) did not constitute interceptions of wire communications within the meaning of
The defendants claim, inter alia, that the trial court improperly denied their motions to suppress because the monitoring and tape-recording of their cordless tel*603ephone conversations, without a judicial wiretap order, was an unlawful interception under our wiretap act. We agree.
We begin our analysis with some brief history. In 1967, the United States Supreme Court extended the protection of the fourth amendment to electronic eavesdropping of oral conversations. Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). Later the same year, the court held that government activity “in electronically listening to and recording [a defendant’s] words violated the privacy upon which he justifiably relied while [making a telephone call from a] telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
In response, the Congress enacted title III, entitled “Wiretapping and Electronic Surveillance,” of the Omnibus Crime Control and Safe Streets Act of 1968;
In general terms, our wiretap act provides that, based upon certain specified findings, a panel of three Superior Court judges may issue an order authorizing “the interception of wire communications17 within the state of Connecticut. . . .”
*606The state concedes that the police intentionally overheard and recorded the defendants’ cordless telephone conversations through the use of electronic devices, namely, the Bearcat Scanner and tape recorder. It is undisputed that the police had no judicial wiretap order authorizing that conduct. It is also undisputed that, if the wiretap act applies, the defendants would be *607aggrieved persons. The issue, therefore, is whether the radio wave portion of the defendants’ conversations over their cordless telephone constituted a “[wjire communication” within the meaning of
“[Tjhe process of statutory interpretation involves a reasoned search for the intention of the legislature.” In re Valerie D., 223 Conn. 492, 512, 613 A.2d 748 (1992). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation . . . .’’(Internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991).
We turn first to the language of the statute. “ ‘Wire communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of telephone or telegraph between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications.”
The defendants argue, first, that the language of the statute is so clear and unambiguous that we need not go beyond the text. Emphasizing the phrases “in whole or in part” and “facilities for the transmission of communications by the aid of telephone,” the defendants *608contend that “[t]he reach of the statute is defined by the communications system being utilized, not the technology employed to access that system.” According to the defendants, “[t]he inquiry is not whether the transmission is carried over wires, radio waves, fiber optics, or by some other means. The test is whether the call is, [in any part,] carried through the nation’s telephone system.” (Emphasis in original.) Thus, the defendants argue, because their conversations ultimately traveled in part through the telephone lines, those conversations were wire communications within the meaning of the act, and it is irrelevant that those conversations were intercepted, not as they traveled through those lines, but as they were broadcast over FM radio waves.20
The state, also relying on the “plain language” of the statute, responds that this interpretation renders superfluous what the state regards as limiting language following the phrase “by the aid of telephone or telegraph.” Focusing on the language, “between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier *609in providing or operating [communications facilities],” the state argues that the wiretap act “protects telephone conversations only ‘between the point of origin and the point of reception furnished or operated by’ a telephone common carrier.
Under the state’s interpretation, the purpose of the limiting language is to delineate the physical boundaries of the protection afforded by the act: “Telephonic communications are not protected in their entirety, but are protected only ‘between the point of origin and the point of reception furnished or operated by’ a telephone utility.” Thus, the state argues, “[w]ire communication” encompasses only that portion of a cordless telephone conversation that is “transmitted through the facilities of a telephone utility.” The state contends further that the scope of a “[w]ire communication” is defined, not simply by the communication system employed, but by the point of interception. Therefore, the state argues, the defendants’ conversations were not wire communications because they were intercepted, not within the points of origin and reception furnished or operated by the telephone company, the telephone wires, but over the radio waves.
We are not persuaded by either the defendants’ or the state’s argument that the language of
First, the focus of the defendants’ interpretation is more in keeping with the language of
The focus of the state’s contrary interpretation is on the protection of the communications involved only as *611they travel over the telephone lines. This interpretation is difficult to reconcile with the statutory reference to “any communication made in whole or in part through” the telephone system. Thus, the defendants’ interpretation creates a closer fit with the language of the definition of “[w]ire communication.”
Second, the legislative history and subsequent judicial gloss placed on the statute counsel strongly for an interpretation that favors protection for cordless telephone conversations. Although the legislative history of the act indicates that the act was intended as a necessary tool for law enforcement, that history also “is replete with strong declarations of legislative intent that it be strictly construed, and that its carefully and narrowly drawn provisions reflect a delicate balancing of interests which placed great weight on safeguards to protect individual liberties. See 14 S. Proc., Pt. 2, 1971 Sess., pp. 844, 849, 856, 869, 870, 870A, 900, 911. . . . It is clear, therefore, that the legislative mind was acutely aware that the act impinged on the ‘right to be let alone—the most comprehensive of rights and the right most valued by civilized men’; Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandéis, J., dissenting); and sought to limit that process as much as legitimately possible.” State v. Formica, 3 Conn. App. 477, 482, 489 A.2d 1060, cert. denied, 196 Conn 806, 494 A.2d 903 (1985). We have examined the legislative history afresh, and have found nothing to cast doubt on this reading of it. See 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 846, 850, 870a, 871, 876, 888, 910, 920, 922, 924, and Pt. 3, p. 1323; 14 S. Proc., Pt. 2, 1971 Sess., pp. 849, 868, 869, 899, 900, 910, 911, 921.
Furthermore, the judicial gloss on the wiretap act has been generally applied consistently with this legislative history, and consistently with the notion that legitimate questions over the meaning of the act should be *612resolved by requiring strict adherence to its provisions by law enforcement authorities so as to limit carefully the invasion of privacy that the act necessarily entails. See, e.g., State v. Ross, 194 Conn. 447, 459, 481 A.2d 730 (1984) (“examination of the plain language of
Third, reading the wiretap act so as to exclude from its scope conversations over cordless telephones would necessarily exclude from its scope the statutory protections afforded by the act to innocent third parties who are at the other end of the conversations and who may have no way of knowing that, although they are speaking over traditional wired telephones, their conversations are unprotected.22 The act’s definition of an *613“aggrieved person” is expansive and includes not only the person or persons named in an order, or the person against whom the interception is directed, but also any “person who was a party to any intercepted wire communication.” (Emphasis added.)
*615Fourth, as the state acknowledged at oral argument, its interpretation of
The state’s interpretation limiting the definition of “[w]ire communication” solely to the utility’s communication system would conflict with the explicit recognition in the act that there are instances in which the issuing panel may, upon proper showing, authorize a “secret entry onto private premises to install any device.”
In this regard, we note that, although until the late 1960s the Federal Communications Commission tariffs of regulated telephone companies prohibited the attachment to the telephone network of any telephone that had not been supplied by the telephone utility, by the early 1970s that restriction had been relaxed and users could purchase and connect to the telephone system *618telephones and other equipment that had not been furnished by the utility company. See R. Crandall, After The Breakup, U.S. Telecommunications in a More Competitive Era (1991) p. 11; A. Stone, Wrong Number, The Breakup of AT&T (1989) pp. 151-52. It is common knowledge that, for many years now, both business and residential users have owned telephones purchased from vendors other than the telephone utilities. Thus, to the extent that the state’s argument requires the intercepting device to attach only to the telephone utility’s equipment, it would mean that almost from the passage of the wiretap act in 1971, the act did not apply to devices installed directly in privately owned telephones. We decline to read the act so as to have created such a dead zone.
We do not think that our wiretap act should be read so narrowly. Just as the United States Supreme Court recognized a legitimate expectation of privacy in the words spoken into a telephone in a public telephone booth, because “[t]o read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication”; Katz v. United States, supra, 352; we decline to read our wiretap act so as to ignore the vital role that the cordless telephone has come to play in private communication.
Indeed, as the state recognized at oral argument, its interpretation is premised on the proposition that the act has been overtaken by modem technology. We disagree. Our definition of a “[w]ire communication” is based on the original federal definition. As one group of commentators has noted: “When Congress passed the Wiretap Act in 1968, telephone calls were usually transmitted as they always had been—by wire. Other technologies, however, were already appearing on the horizon. Implicitly recognizing the inevitable advance of these technologies, Congress extended protection under the Wiretap Act to telephone calls carried ‘in *619whole or in part over wire.’ Today, only a minority of telephone calls are made through wire alone; the majority make use of a combination of wire and some form of radio technology, usually microwave.” R. Kastenmeier, D. Leavy & D. Beier, “Communications Privacy: A Legislative Perspective,” 1989 Wis. L. Rev. 715, 721-22; see also note, “The Admissibility of Evidence Obtained by Eavesdropping on Cordless Telephone Conversations,” 86 Colum. L. Rev. 323 (1986) (arguing that cordless telephone conversations are within the original federal definition of “wire communication”); note, “Title III Protection for Wireless Telephones,” 1985 Ill. L. Rev. 143 (same); note, “State v. Delaurier: Privacy Rights and Cordless Telephones— The Fourth Amendment is Put on Hold,” 19 J. Marshall L. Rev. 1087 (1986) (same).
The state argues that recent statutory amendments and the legislative rejection of other, proposed amendments indicate a legislative intent that the radio wave portion of cordless telephone conversations are not “wire communications.” The state contends that the amendment in 1989; see Public Acts 1989, No. 89-103; of the definition of “wiretapping,” for purposes of
Relying on this history, including the attending legislative debate, the state would have us draw the inference “that
Although we have on occasion and under limited circumstances looked to subsequent enactments in order to illuminate legislative intent with respect to prior legislation; see, e.g., In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992); we are not persuaded that the legislative activity in 1989 and 1991 illuminates the meaning of
The state also argues that the defendants’ interpretation of “[w]ire communication” as including any communication that travels in part through the telephone lines should be eschewed because it would lead to a host of absurd results. The state contends that the police would be required to secure a judicial wiretap order to listen to cordless telephone conversations that are readily receivable by such commonplace items as ordinary television sets, baby monitors and other cordless telephones. The state also posits that, under the defendants’ construction, such an order would be required: (1) to listen to someone shouting into a telephone; (2) to listen to the tape in a telephone answering machine; (3) to listen to marine radio communications; or (4) to permit an off-duty police officer who, using his own scanner, innocently intercepts a cordless telephone conversation indicating planned criminal activity. We need not go so far in the context of this case.
As we indicated above, we do not decide today that the literal language of
We recognize that this decision runs counter to the numerical weight of authority in other jurisdictions where courts have interpreted either the original federal definition of “wire communication” or similar defi*623nitions in their own states. See Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989), cert. denied, 493 U.S. 1022, 110 S. Ct. 723, 107 L. Ed. 2d 743 (1990) (radio portion of cordless telephone conversations not protected by 1968 federal wiretap act); State v. Howard, 235 Kan. 236, 679 P.2d 197 (1984) (same); State v. Delaurier, 488 A.2d 688 (R.I. 1985) (same); State v. Smith, 149 Wis. 2d 89, 438 N.W.2d 571 (1989) (radio portion of cordless telephone conversations not a “wire communication” as defined in Wisconsin Electronic Surveillance Control Law); see also Edwards v. Bardwell, 632 F. Sup. 584 (M.D. La.), aff‘d, 808 F.2d 54 (5th Cir. 1986) (radio portion of automobile telephone communications not protected by 1968 federal wiretap act); Dorsey v. State, 402 So. 2d 1178 (Fla. 1981) (messages sent through pocket pagers not “wire communications” under Florida statute because statute applies “only to so much of the communication as is actually transmitted by wire and not broadcast in a manner available to the public”); but see United States v. Hall, 488 F.2d 193 (9th Cir. 1973) (1968 federal definition of “wire communication” includes conversations over automobile radio telephones); People v. Fata, 159 App. Div. 2d 180, 559 N.Y.S.2d 348 (1990) (state statutory definition of “telephonic communication” encompasses cordless telephone communication). Although, as we have noted, the applicability of
The judgment is reversed and the case is remanded with direction to grant the defendants’ motions to suppress.
*624In this opinion Peters, C. J., Norcott and Katz, Js., concurred.
Notes
“(1) ‘Wire communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of telephone or telegraph between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications.”
The defendants appealed from the judgments of the trial court to the Appellate Court. We transferred the appeals to this court pursuant to
More precisely, Mary McVeigh was convicted of being an accessory to possession of cocaine with intent to sell in violation of
The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” The fourth amendment to the United States constitution was made applicable to the states through the fourteenth amendment’s due process clause. Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949).
Article first, § 7 of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
“FM” is the abbreviation for “frequency modulation,” which is defined as “modulation of the frequency of the carrier wave in accordance with . . . a signal; specif: the system of broadcasting using this method of modulation.” Webster’s Third New International Dictionary.
It is also trae, however, that even conversations over wired telephones often travel in part through some form of radio technology, namely, microwaves. Many toll telephone calls are transmitted at some point by way of microwave technology. See R. Kastenmeier, D. Leavy & D. Beier, “Communications Privacy: A Legislative Perspective,” 1989 Wis. L. Rev. 715, 722 n.43.
A “hertzian wave,” named after the German physicist, Heinrich R. Hertz, is an electromagnetic wave produced by the oscillation of electricity in a conductor (such as a radio antenna) ranging in length from a few *600millimeters to many kilometers. A hertz is a unit of frequency of a periodic process equal to one cycle per second. A megahertz is a unit of frequency equal to one million hertz. Webster’s Third New International Dictionary.
Current regulations of the Federal Communications Commission require manufacturers of cordless telephones to provide at least 256 discrete digital codes in each telephone set. See
This finding was based, as were all the facts regarding the operation of cordless telephones, on the testimony of Michael Lanteri, the state’s expert witness. Lanteri was the owner of a retail electronics store whose expertise was based upon his fifteen years experience selling electronic equipment. Lanteri testified that cordless telephones “usually have a maximum range of a thousand feet ... I think that’s more or less like an average. It can vary depending on the terrain, and like any FM radio, if there’s aluminum siding on the building, that would inhibit the radio waves from leaving and going as far.”
It is not clear from this testimony, or from the trial court’s finding based thereon, whether Lanteri meant that the radio waves from a cordless telephone could travel an average maximum range of 1000 feet to interception by a scanner, or whether the same maximum range applies to the workable distance between the handset and the base unit of a cordless telephone, or both. Lanteri did not specifically relate this testimony to the defendants’ cordless telephone.
In this connection, another court has recently noted that “[t]he effective range of [today’s] cordless phones varies greatly from model to model; many are limited to a range of about sixty feet, barely beyond the average house or yard.” United States v. Smith, 978 F.2d 171, 179 (5th Cir. 1992). Furthermore, regulations of the Federal Communications Commission limit the maximum field strength of cordless telephone radio signals. See
The court in United States v. Smith, 978 F.2d 171, 179 (5th Cir. 1992), also noted, however, that “[c]ordless phones are also no longer ‘pre-set’ to one frequency. Instead, most cordless phones sold today can monitor all available frequencies and automatically select one that is unused. This greatly reduces the chance that a cordless phone will pick up conversations from other cordless phones. Today’s cordless phones broadcast on radio frequencies not utilized by commercial radio so that conventional radios can no longer pick up cordless phone communication. Although radio scanners . . . can still monitor most cordless phones . . . cordless phones now appearing on the market actually scramble the radio signal so that even radio scanners cannot intercept the communication.” In the present case, because the defendants’ cordless telephone transmitted on a frequency between forty-six and forty-nine megahertz, an ordinary FM radio tuner would not have been able to monitor the conversations of the defendants.
Part 15 of the Federal Communications Commission rules “sets out the regulations under which an intentional . . . radiator [defined as a generator and emitter of radio frequency energy by radiation or conduction;
Under
Subsequently, in the Electronic Communications Privacy Act of 1986,
Under
Our wiretap statute permits interception only of wire communications and, unlike the federal statute, does not permit the interception of oral communications.
“(1) ‘Wire communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of telephone or telegraph between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications;
“(2) ‘Intercept’ means the intentional overhearing or recording of a wire communication through the use of any electronic, mechanical or other device;
“(3) ‘Electronic, mechanical or other device’ means any device or apparatus which can be used to intercept a wire communication other than (A) any telephone or telegraph instrument, equipment or facility, or any component thereof (i) furnished to the subscriber or used by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business, or (ii) being used by a communications common carrier in the ordinary course of its business, (B) a hearing aid or similar device being used to correct subnormal hearing to not better than normal;
*606“(4) ‘Person’ means any officer, agent or employee of the state of Connecticut or any political subdivision thereof, and any individual,-partnership, association, joint stock company, trust or corporation;
“(5) ‘Investigative officer’ means (A) any officer of the Connecticut state police, (B) the chief inspector or any inspector in the division of criminal justice who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, (C) any municipal police officer who has been duly sworn as a special state police officer under the provisions of section 29-177 and who is currently assigned to the state-wide narcotics task force or the state-wide organized crime investigative task force and is acting under the direct authority of the Connecticut state police, and (D) any attorney authorized by law to prosecute or participate in the prosecution of offenses enumerated in this chapter;
“(6) ‘Law enforcement officer’ means any officer of any organized police department of this state or of the state police of any other state, an official of the Federal Bureau of Investigation, Drug Enforcement Administration or United States Customs Service, or the United States attorney for the district of Connecticut or a person designated by him in writing to receive the contents of any wire communication or evidence derived therefrom;
“(7) ‘Contents,’ when used with respect to any wire communication, means and includes any information concerning the identity of the parties to such communication or the existence, substance, purport or meaning of that communication;
“(8) ‘Panel of judges’ or ‘panel’ means any panel or panels of three superior court judges specifically designated by the chief justice of the supreme court from time to time to receive applications for, and to enter orders authorizing, interceptions of wire communications in accordance with the provisions of this chapter;
“(9) ‘Communication common carrier’ means any person engaged as a common carrier for hire in the transmission of communications by wire or radio;
(10) ‘Aggrieved person’ means a person who was a party to any intercepted wire communication, a person against whom the interception was directed, a person named in any order authorizing an interception, or a person having a property interest in any premises involved in any interception.”
The defendants bolster this argument by contrasting the language in our definition of “wire communication”—“by the aid of telephone or telegraph”—with the comparable language of the federal act as originally enacted, namely, “by the aid of wire, cable, or other like connection.”
We are not persuaded that this linguistic difference has the significance that the defendants attach to it. The Senate Report on the 1968 federal wiretap legislation indicates that “[paragraph (1) defines ‘wire communication’ to include all communications carried by a common carrier, in whole or in part, through our Nation’s communications network. The coverage is intended to be comprehensive.” S. Rep. No. 1097, 90th Cong., 2d Sess. 2 (1968), reprinted in 1968 U.S. Code Congressional & Administrative News 2112, 2178. Thus, although the original federal legislation was couched in language that sounds “hardware-based,” this report evidences an intent that the legislation be no less “system-based” than our statute. See United States v. Hall, 488 F.2d 193, 197 (9th Cir. 1973).
Nor are we persuaded by the defendants’ contention that
The state responds to this concern by arguing that a third party, using a wired telephone, who converses with someone over the telephone lines has only a hope, rather than an expectation, of privacy, because there is *613always the risk that the other party may share that conversation with others. Thus, the state contends, such a third party who speaks with someone using a cordless telephone is in no worse position by virtue of excluding cordless telephone conversations from the ambit of
“(b) Any person who has received, by any means authorized by this chapter, any information concerning a wire communication, or evidence derived therefrom, intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence insofar as it relates to the crimes set forth in section 54-41b while giving testimony under oath or affirmation in any criminal proceeding before any court or grand jury.
“(c) If an investigative officer, while engaged in the interception of wire communications in accordance with the provisions of this chapter, intercepts wire communications relating to any crime not specified in the order authorizing such interception, the contents of such intercepted communications and evidence derived therefrom may be disclosed as otherwise provided in subsection (a).
“(d) Any investigative officer who discloses the contents of any intercepted wire communication or evidence derived therefrom (1) to any person not authorized to receive such information or (2) in a manner otherwise than authorized by the provisions of this chapter shall be guilty of a class D felony.”
“(b) This section and sections 53a-188 and 53a-189 shall not apply to wiretapping by criminal law enforcement officials in the lawful performance of their duties and do not affect the admissibility of evidence in any proceedings other than a prosecution for eavesdropping or tampering with private communications.”
“(b) Eavesdropping is a class D felony.”
Cellular radio telephones operate in the 824 through 894 megahertz frequency bandwidth; see
It is trae that in In re Valerie D., 223 Conn. 492, 518, 613 A.2d 748 (1992), we did rely in part on the rejection of certain legislation as illuminating the meaning of preexisting statutory language. In that unusual circumstance, however, the rejection was accompanied by a simultaneous enactment of legislation that covered the same subject matter.
Dissenting Opinion
dissenting. I respectfully dissent from the majority opinion. I do not believe that the broadcast of radio waves into public airspace constitutes a “wire communication” under
I agree with the majority that in attempting to discover the intent of the legislature “ ‘we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation. . . ” Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991). I do not detect from any of those factors, however, that the 1971 legislature intended, when it enacted the wiretap statutes, that the radio wave segment of cordless telephone communications would constitute wire communications.
I disagree with the majority that the portion of
In order to arrive at the result that it does, the majority neutralizes the phrase in the definition of “wire communication” that indicates that the wiretap statutes are to apply only to “facilities for the transmission of communications by the aid of telephone or telegraph between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities.”
In downplaying the importance of the limiting language in the definition, the majority has contravened an elementary canon of statutory construction that requires that “no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . .” (Internal quotation marks omitted.) State v. Delossantos, 211 Conn. 258, 274, 559 A.2d 164, cert. denied, 493 U.S. 86, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). The majority has, consequently, misconstrued the intent of the legislature and has applied the wiretap statutes to radio waves in the public airspace. I find it hard to imagine that the statutes regulating wiretaps were ever intended to have any such application. See State v. Smith, supra, 102-103. The majority has, I believe, with the best of intentions, expanded the definition of “wire communication” to bring about what it perceives to be a desirable end.
*626The 1991 legislature, however, when faced with the very question raised by this case, defeated a bill expressly calculated to bring the wireless, radio wave segment of communications via cordless telephone under the protective wing of the wiretap statutes.1 It seems a bit incongruous that the 1991 legislature, which undoubtedly had knowledge of and information available concerning cordless telephone technology, rejected an opportunity to include cordless communications within the protection of the wiretap statutes while the 1971 legislature, which would have had little or no knowledge of such technology, intended that the radio wave component of such communications be protected. I believe that the majority, in the guise of statutory *627interpretation, has legislated on a matter of public policy. That is not the function of this court.
I respectfully dissent.
Representative William Wollenberg, in addressing this proposed legislation on the floor of the House of Representatives in the 1991 legislative session, stated, inter alia: “Ladies and gentlemen of this Chamber, if we want law and order in our streets, let’s start some place. If the criminals want privacy, they have plenty of privacy. This isn’t a bill to protect the homeowner from walking around with a cordless phone and talking to his neighbor or son and daughter. This bill protects criminals and they don’t need—we don’t need the wiretap law in effect for cordless and cellular phones.
“If they’re dumb enough to use a cordless and cellular phone, they ought to be caught because all they have to do is go in their house and use their regular telephone and then if the police listen without the warrant and without the wiretapping authority, then it’s thrown out. It’s no good. We’re going too far to protect the criminal rights in doing these kinds of things. We’re doing it under the guise of protecting the individual in his home and that privacy.
* ** *
“Come on, folks. We’ve tied the police’s hands so much now that we’re suffering, each and everyone of us is suffering. We ought to stop it and we can start in this session by stopping it right now and voting to defeat this bill. There’s no need for it, only to protect one or two drug dealers who are dumb enough to use these things if they want to make a sale or something and that’s the long and the short of it.
“We should defeat this bill. If it gives the police just a very small, a very small leg up on this criminal element and the drug peddlers, then let’s do that, folks, let’s do something here today to help that. Thank you.” 34 H.R. Proc., Pt. 6, 1991 Sess., pp. 2095-97.