OPINION

DITTER, District Judge.

The question presented in this case is whether probation may be revoked upon the basis of court-authorized wiretap evidence without first giving the probationer an opportunity to litigate the validity of the wiretap. Reluctantly, I conclude that it may not.

On January 30, 1974, respondent, Alfred Henry Manuszak, also known as "Sassy Doc," plead guilty to operating an illegal gambling business in violation of 18 U.S.C. § 1955. I imposed a fine of $4,000., suspended sentence of imprisonment, and placed Manuszak on probation for a period of three years upon the condition, inter alia, that he "refrain from any unlawful conduct." Subsequently, on January 27th of this year, the government petitioned to have Manuszak's probation revoked on the grounds that he has continued to engage in illegal gambling activities. The evidence upon which the government intends to rely at the revocation hearing consists of a telephone conversation between Manuszak and another individual which was intercepted pursuant to a wiretap order initially entered by Judge Broderick and extended by Judge Newcomer. After the petition was filed Manuszak requested that the government supply him with copies of the original and extension wiretap applications, orders, and supporting affidavits so that he might file a motion to suppress the intercepted conversations. Since Local Rule of Criminal Procedure 16(b) requires that motions to suppress evidence derived from electronic surveillance be heard by the judge who originally authorized it, in effect respondent requests this court to stay his probation revocation hearing until after Judge Broderick has ruled on his motion to suppress.

The government resists disclosure of the requested items and opposes staying the revocation hearing on the grounds that these measures are unnecessary since, in its view, respondent is not entitled to test the validity of wire interceptions as a prerequisite to the use of evidence derived therefrom in a probation revocation proceeding. Two arguments are advanced by the government in support of its position. First, it contends that the legality of the interceptions is simply immaterial because the exclusionary rule does not apply to probation revocation proceedings. Alternatively, the government contends that even if the exclusionary rule does apply to probation revocation proceedings, this court's review of the legality of the interceptions should be limited to an in camera inspection of the court orders to see if they are facially valid. The respondent takes issue with both of the government's arguments.

At the outset it is important to note that respondent does not and could not rely on the exclusionary rule developed by the courts as a remedy designed to safeguard fourth amendment rights through its supposed deterrent effect. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Numerous cases have held that this judicially created doctrine has no application in the probation revocation context. See, e.g., United States v. Vandemark, 522 F.2d 1019 (9th Cir. 1975); United States v. Winsett, 518 F.2d 51 (9th Cir. 1975); United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir. 1975); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970) (parole revocation). Rather, respondent relies on the statutory exclusionary rule contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Section 802, as amended, 18 U.S.C. § 2515 which, he contends, provides a significantly broader exclusionary remedy where illegal electronic surveillance is involved than does the judicially created exclusionary rule. The government disputes that this statute has a broader sweep than its judicially created counterpart, yet in support of its position it relies primarily on cases which have refused to apply the judicially created rule to non-wiretap evidence in a variety of contexts. These cases are not controlling in the matter at hand.

The only authority supporting the government's position that the statutory exclusionary rules does not apply to probation revocation proceedings is United States v. Caron, 474 F.2d 506, 509-10 (5th Cir. 1973), in which the court held that Section 2515 did not proscribe the use of evidence obtained by unlawful wiretapping for impeachment purposes. In reaching its decision on the statutory point the court relied on a certain passage in the legislative history of Title III as evidencing Congress' intent that Section 2515 was not to expand the exclusionary rule beyond the confines of the judicially-created doctrine. The passage in question, contained in the Senate Report on the bill that included Title III, states:

Section 2515 of the new chapter imposes an evidentiary sanction to compel compliance with the other prohibitions of the chapter. It provides that intercepted wire or oral communications or evidence derived therefrom may not be received in evidence in any proceeding before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision of a State, where the disclosure of that information would be in violation of this chapter. The provision must, of course, be read in light of section 2518(10)(a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. It applies to suppress evidence directly ( Nardone v. United States, 58 S.Ct. 275, 302 U.S. 379 [ 82 L.Ed. 314] (1937)) or indirectly obtained in violation of the chapter. ( Nardone v. United States, 60 S.Ct. 266, 308 U.S. 338 [ 84 L.Ed. 307] (1939).) There is, however, no intention to change the attenuation rule. See Nardone v. United States, 127 F.2d 521 2d, certiorari denied, 62 S.Ct. 1296, 316 U.S. 698 [ 86 L.Ed. 1767] (1942); Wong Sun v. United States, 83 S.Ct. 407, 371 U.S. 471 [ 9 L.Ed.2d 441] (1963). Nor generally to press the scope of the suppression role beyond present search and seizure law. See Walder v. United States, 74 S.Ct. 354, 347 U.S. 62 [ 98 L.Ed. 503] (1954).

S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S. Code Cong. Adm.News, pp. 2184-85 (emphasis added), quoted in Caron, supra, at 509-10.

The problem with the quoted statement is that it is in fundamental conflict with the language of the statute itself, which plainly does extend the scope of the suppression remedy beyond conventional search and seizure law by providing that unlawfully intercepted communications may not be received in evidence "in any trial, hearing or other proceeding in or before any court, grand jury, department, . . . [etc.]" (Emphasis added.) The most obvious example of the expanded scope of the statutory exclusionary rule is found in the grand jury context. It traditionally has been the rule that the grand jury may consider incompetent or illegally obtained evidence and that an indictment based upon such evidence is not subject to challenge. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Yet Section 2515 specifically excludes from use by the grand jury evidence derived from unlawful electronic surveillance. See Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). While disagreeing with the majority over the right of a grand jury witness to raise Section 2515 as a defense to a contempt charge brought for failure to answer questions based on information obtained through allegedly unlawful wiretapping, even the dissenters in Gelbard agreed that the statute "prohibits the use of illegally overheard . . . communications before grand juries as well as other governmental bodies." Id. at 72-73, 92 S.Ct. at 2373-74 (Rehnquist, J., dissenting). In Calandra, Mr. Justice Powell, who was one of the dissenters in Gelbard, offered the following explanation for the differing results reached in the two cases:

The dissent's reliance on Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), is misplaced. . . The Court's holding [in Gelbard] rested exclusively on the interpretation of Tit. III, which represented a congressional effort to afford special safeguards against the unique problems posed by misuse of wiretapping and electronic surveillance. There was no indication, in either Gelbard or the legislative history, that Tit. III was regarded as a restatement of existing law with respect to grand jury proceedings. As Mr. Justice White noted in his concurring opinion in Gelbard, Tit. III "unquestionably works a change in the law with respect to the rights of grand jury witnesses . . ." 408 U.S. at 70, 92 S.Ct. at 2372.

Taken together, the combined force of Gelbard, Calandra, and the plain language of Section 2515 are sufficiently compelling to override the single passage in the legislative history relied on in Caron and to convince me that the statute does indeed create a broader exclusionary rule than the judicially-created one. And since it cannot be disputed that a probation revocation proceeding is a "proceeding" within the meaning of Section 2515, I conclude that the statutory exclusionary rule is applicable here.

The government's fallback position is that even if the exclusionary rule does apply to probation revocation proceedings, the respondent is not entitled to a fullblown suppression hearing on the legality of the interceptions. Rather, relying on In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158, reh. denied, 419 U.S. 1060, 95 S.Ct. 645, 42 L.Ed.2d 657 (1974), the government contends that the court should conduct only a limited in camera inspection of the interception order and supporting papers to determine their facial validity. In Persico the court adopted the position espoused in Justice White's concurring opinion in Gelbard and held that a grand jury witness was not entitled to a full suppression hearing prior to answering questions based on electronic surveillance where the government produced a court order authorizing such surveillance. The court concluded that only where the illegality of the surveillance may be established without resort to a suppression hearing, that is where the government either has admitted its illegality or failed to produce a court order or where the illegality has been determined in a prior judicial proceeding, could a grand jury witness rely on Section 2515 as a defense to a contempt charge. Id. at 1161.

The government's reliance on Persico here is misplaced. The Persico court based its decision on legislative history revealing Congress' understanding that the statutory exclusionary rule contained in Section 2515 would be limited by Section 2518(10)(a), which governs the class of persons entitled to make a motion to suppress and that the latter section did not extend to grand jury witnesses. Id. But while the legislative history of Section 2518(10)(a) clearly does show an intent to exclude grand jury witnesses from the class entitled to make a motion to suppress, it evinces no similar intent with respect to a person facing probation revocation. More importantly, the legislative history of Section 2518(9) affirmatively shows that a probationer subject to revocation proceedings may invoke the suppression motion provided for in Section 2518(10)(a).

Paragraph 9 provides that the contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any Federal or State trial, hearing, or other proceeding unless each party not less than 10 days before the trial has been furnished with a copy of the court order under which the interception was authorized or approved. "Proceeding" is intended to include all adversary type hearings. It would include a trial itself, a probation revocation proceeding, or a hearing on a motion for reduction of sentence. It would not include a grand jury hearing. Compare [ United States v.] Blue, 384 U.S. 251, 86 S.Ct. 1416, [ 16 L.Ed.2d 510] (1966). The 10-day period is designed to give the party an opportunity to make a pretrial motion to suppress under paragraph (10)(a), discussed below. Compare Segurola v. United States, [ 275 U.S. 106,] 48 S.Ct. 77, [ 72 L.Ed. 186] (1927). Where it is not possible to furnish the party the information 10 days before trial, and he would not be prejudiced, the judge may waive the requirement. Such a situation might arise, for example, when an intercepted communication became relevant only as a result of the character of a defense presented by the defendant. Ordinarily, prejudice would be shown only where it was established that the trial could not be reasonably recessed in order that the motion to suppress could be fully heard or that the granting of a mistrial rather than excluding the evidence would be grossly unfair.

S.Rep. No. 1097, supra, 1968 U.S. Code Cong. Adm.News at pp. 2194-95 (emphasis added).

For the reasons stated above I conclude that the respondent is entitled to litigate the validity of the wiretaps in question prior to their use as evidence at his probation revocation hearing. I recognize and fully agree with the government that the reasons for not applying the judicially-created exclusionary rule in the probation revocation context are equally applicable here and that the delay inherent in the statutory suppression remedy is likely to be every bit as inimical to the rehabilitation objectives of probation policy as it would be to the proper functioning of the grand jury. Nonetheless Congress has spoken and I am not free to disregard its clear mandate. Relief from perceived undesirable effects of the statutory exclusionary rule must be sought through legislative, not judicial action. The government's petition to revoke Manuszak's probation will be stayed pending resolution of the motion to suppress which respondent forthwith shall file before Judge Broderick.

ADDENDUM TO OPINION

The government has asked that I reconsider my opinion of May 25, 1977, in the above matter. In that opinion I held that before probation may be revoked on the basis of evidence obtained through court-authorized electronic surveillance, the probationer must be given the opportunity to litigate the validity of the wiretap. I have engaged in the requested reconsideration and will abide by my earlier decision. My reasons follow.

The specific portion of my prior opinion with which the government takes issue is footnote 10, which reads as follows:

(10) The government also resists disclosure of the court orders and supporting papers on the grounds that it will impair an on-going grand jury investigation by revealing the identity of actual or prospective grand jury witnesses who might then be subjected to pressure to refrain from testifying or to testify falsely. While I am sympathetic to the government's plight, the fact remains that it has sought to revoke respondent's probation and therefore under Section 2518(9) he has the right to be furnished with a copy of the court order and accompanying application. Unlike Section 2518(8)(d), dealt with by Judge Fogel in Application of United States, [ 413 F. Supp. 1321 (E.D.Pa. 1976)] which gives the court discretion to deny access to the order and application, Section 2518(9) mandates that these items be made available to a party facing . . . "any proceeding," although Section 2518(10)(a) does give the court some discretion to deny access to the intercepted communications themselves.

The government objects to the intimation in the above footnote that courts have no discretion to deny Section 2518(10)(a) suppression movants access to the wiretap application and order. It is the government's view that such discretion does exist and it therefore requests that I "strike footnote 10 from [my] Opinion and hold that Section 2518(9) does not divest the hearing judge of his discretion in determining what disclosure is appropriate on a motion to suppress."

In support of its position that Section 2518(9) does not require disclosure of the wiretap application and order, the government first argues that this section is a notice and not a disclosure provision. The plain language of the statute is to the contrary, however. The statute does not say that a party facing a trial, hearing or other proceeding must be given notice of the wiretap; it says that he must be "furnished with a copy of the court order, and accompanying application." 18 U.S.C. § 2518(9) (emphasis added). See United States v. Ripka, 349 F. Supp. 539, 541-42 (E.D.Pa. 1972), aff'd mem. Appeal of Manuszak, 480 F.2d 919 (3d Cir.), cert. denied sub nom., United States v. Manuszak, 414 U.S. 979, 94 S.Ct. 285, 38 L.Ed.2d 223 (1973). The government cites a number of cases which have held that failure to comply with various disclosure or inventory provisions of Title III do not necessarily require suppression of evidence derived from electronic surveillance. These cases do not support the government's position. In relying on them it has failed to distinguish between the requirements of the Act and the remedy for failure to comply with those requirements. For example, in United States v. Kohne, supra, the court held that the failure to serve the order and application on the defendants ten days prior to trial did not require suppression of the wiretap evidence. But the court most certainly did not hold that the defendants had no right to obtain these documents from the government prior to moving for suppression. In fact the whole basis for the court's decision was that the defendants had suffered no prejudice since they had been provided with the application and order prior to the suppression hearing and had utilized them in cross-examining the government's witnesses at this hearing. 358 F. Supp. at 1057 and n. 4.

Noting that Section 2518(10)(a) enumerates in general terms the issues which may be raised in a motion to suppress but does not specify the nature of the proceeding which must be held to resolve these issues, the government next argues that this section does not require that an evidentiary hearing be held in every case. See United States v. Losing, 539 F.2d 1174 (8th Cir. 1976). I agree with this much of the government's argument and to the extent my prior opinion may have suggested that an evidentiary hearing is mandatory in every case, I now expressly declare that it was not my intention to do so.

However, I do not agree that the court's discretion as to whether or not to hear evidence means that the court also has discretion to deny disclosure of the wiretap applications and order mandated by Section 2518(9) or that the court may determine the validity of the electronic surveillance ex parte by an in camera submission of these documents. Again, the case relied on by the government to support its position does not do so. Losing, supra, holds only that the court has discretion to deny a hearing on the suppression motion. It makes no suggestion that a similar discretion exists with respect to disclosure of the application and order and in fact, as in Kohne, supra, the defendants in Losing had been provided with the application and order prior to moving to suppress. See 539 F.2d at 1176-77.

Section 2518(10)(a) provides that a motion to suppress may be made on the grounds that:

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which [the communication] was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of interception or approval.

And the purpose of Section 2518(9) is not, as the government contends, merely to provide a person facing a "proceeding" with notice of the wiretap so that he can move to suppress; it is "designed to give the party an opportunity to make a pre-trial motion to suppress." S.Rep. No. 1097, supra, 1968 U.S. Code Cong. Admin.News, pp. 2194-95 (emphasis added). But how can a party realistically have an opportunity to move to suppress on one or more of the statutory grounds if all he is told is that a wiretap has occurred and that evidence derived therefrom will be used against him in the forthcoming proceeding? Unless the legislative history is to be interpreted as contemplating that a party may be given only the opportunity to file a conclusory motion in language tracking that used in Section 2518(10)(a), Section 2518(9) must be construed as making disclosure of the application and order mandatory. Losing also supports this interpretation of Section 2518(9).

The Losing court adopted the criterion set forth in United States v. Ledesma, 499 F.2d 36 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974), for determining when a hearing on a suppression motion is required:

Evidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required.

Without access to the wiretap application the party against whom the government is proceeding would not know the information presented to the judge who approved the interceptions and could not challenge its accuracy nor could his counsel make an intelligent assessment of whether the application established probable cause. The party therefore would be in no position to assert (except in a conclusory fashion) that the communications were unlawfully intercepted. Denial of access to the application and order also would effectively preclude motions to suppress based on the second and third statutory grounds. Obviously, a party cannot argue that the wiretap authorization is facially insufficient unless he has an opportunity to review the face of the authorization. And to determine whether it would be fruitful to argue that the interception was not made in conformity with the order the party must be able to compare the terms of the order with the reality of the manner in which the interception was carried out. This, again, necessitates that the party have access to the order.

I recognize that In re Lochiatto, 497 F.2d 803 (1st Cir. 1974), provides a modicum of support for the government's position that the validity of the wiretap may be determined by the court in camera, but that case involved a grand jury witness and I agree with In re Persico, 491 F.2d 1156, 1161-62 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158, reh. denied, 419 U.S. 1060, 95 S.Ct. 645, 42 L.Ed.2d 657 (1974), that such a person is not entitled to make the Section 2518(10)(a) suppression motion. I therefore find Lochiatto distinguishable from the case sub judice.

The government's third argument is that construing Section 2518(9) as a mandatory disclosure provision is inconsistent with Section 2518(8)(b) which provides for sealing of the wiretap application and order and disclosure only upon a showing of good cause. The attempted analogy between Sections 2518(8) and 2518(9) must fail, however, because the two sections do not operate in the same context. Section 2518(8) establishes a procedural framework for providing notice to those who have been the target of an actual or attempted wiretap or whose conversations have been overheard regardless of whether or not they have become the subject of a specific charge of wrongdoing. See Petition of Leppo, 497 F.2d 954, 956 (5th Cir. 1974); United States v. Best, 363 F. Supp. 11, 19-21 (S.D.Ga. 1973); United States v. Lanza, 341 F. Supp. 405, 420-21 (M.D.Fla. 1972); Application of United States, supra. However, Section 2518(9) applies only to those who are facing a trial or other adversary proceedings, that is those against whom the government has sought the infliction of some form of punishment. This distinction was recognized by the Ninth Circuit in United States v. Chun, 503 F.2d 533 (1974).

Section 2518(8)(d) was clearly meant to provide this post-use notice. The Senate Report on that subparagraph states: "Yet the intent of the provision is that the principle of post-use notice will be retained." 1968 U.S. Code Cong. and Adm.News at 2194. Such post-use notice functions to provide individuals with the opportunity to exercise their constitutional right to challenge the validity of a wiretap, and, thereby, the admissibility of evidence obtained or derived therefrom. See Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Section 2518(9) performs a dual function. First, it operates to provide the requisite post-use notice to aggrieved persons in those instances where it is not supplied by subparagraphs 2518(8)(d). United States v. Ripka, 349 F. Supp. 539, 541-542 (E.D.Pa. 1972). At the same time it also operates to provide additional information to an individual who has received § 2518(8)(d) notice, and who is subsequently indicted, so that he may be in a better position to attack the validity of the initial order.

Finally the government argues that it is incongruous to require disclosure of the application and order and at the same time leave disclosure of intercepted communications or evidence derived therefrom to the discretion of the court. Even if this contention were entirely accurate, I would be forced to reject it because the plain language of Sections 2518(9) and 2518(10)(a) draw just such a distinction with respect to disclosure of these items. In any event, the distinction appears not to be as irrational as the government suggests. First, Congress may well have believed that in the usual case information actually gathered through electronic surveillance would be more likely to be of a sensitive or highly personal character than information contained in the application and order for the interception and therefore concluded that the trial judge should have some leeway with respect to the former items but not the latter. Secondly, the information contained in the application and order usually will be of much greater importance to a party contemplating the filing of a suppression motion than the intercepted communications themselves. As noted previously access to intercepted communications would seem to be important only when the suppression motion is based on the third statutory ground, i.e., that the interception was not made in conformity with the application or order, and even then only when the nature of the communications would be relevant to determining the motion. The application and order, however, establish the very foundation upon which any surveillance was conducted in the first place and upon which its legality must stand or fall. Thus, a party must have access to these documents in order to make any kind of effective assessment of the surveillance's validity no matter what grounds may ultimately be relied upon to support a suppression motion.

In summary then, I conclude that Section 2518(9) makes disclosure of the wiretap application and order mandatory to those, such as respondent Manuszak, within the class entitled to make a Section 2518(10)(a) suppression motion. I further conclude that the validity of the wiretap may not be determined in an ex parte proceeding by the court's reviewing these documents ( i.e. the application and order) in camera, although the court may review intercepted communications which are not part of the application in camera if it becomes necessary to do so. After the application and order have been disclosed to the party facing a "proceeding" as explained in the legislative history of Section 2518(9) he is then entitled to move for suppression on any of the grounds enumerated in Section 2518(10)(a). While the decision to hold an evidentiary hearing on the suppression motion rests with the discretion of the judge hearing it depending upon the issues raised therein, the motion must be decided in an adversary context; that is the movant must at least be given an opportunity to present written or oral arguments in support of his position.

I recognize that where the wiretap application and order contain sensitive information the disclosure of which could prejudice an ongoing investigation, the government may be put to the hard choice of either foregoing its proceeding against the defendant or risking the frustration of its investigation. But this is a choice which Congress has in plain language decreed the government must make when it seeks to deprive a person of his liberty on the basis of wiretap evidence. In truth it is not much different than a number of other difficult decisions which the government must make in pursuing a criminal prosecution, such as when it must decide whether to proceed with a case that will require revelation of the identity of an informant. Cf. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

ORDER

AND NOW, this 13th day of July, 1977, having reconsidered this court's opinion of May 25, 1977, in the above matter, it is hereby ordered that the government's motion to strike footnote 10 from the opinion is denied.