A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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A panel of the Superior Court of Pennsylvania has issued a decision in the matter of COMMONWEALTH of Pennsylvania, Appellant v. Rahiem Cardel FANT, Appellee, No. 386 MDA 2014, 2015 WL 528045, 2015 PA Super 28 (Feb. 9, 2015). This was a Commonwealth appeal from a suppression order of the Court of Common Pleas of Clinton County, Criminal Division, CP–18–CR–0000415–2013. The Judges were BOWES, OTT, and STABILE.

At issue were recordings of conversations that took place between Appellee inmate and visitors in the facility’s visitation room and whether the recorded calls were “telephone calls” under § 5704(14) the Pennsylvania Wiretap Act,18 Pa.C.S.A. § 5704(14), which provides, in pertinent part, that:

It shall not be unlawful and no prior court approval shall be required under this chapter for: …

(14) An investigative officer, a law enforcement officer or employees of a county correctional facility to intercept, record, monitor or divulge any telephone calls from or to an inmate in a facility under the following conditions:

(i) The county correctional facility shall adhere to the following procedures and restrictions when intercepting, recording, monitoring or divulging any telephone calls from or to an inmate in a county correctional facility as provided for by this paragraph:

(A) Before the implementation of this paragraph, all inmates of the facility shall be notified in writing that, as of the effective date of this paragraph, their telephone conversations may be intercepted, recorded, monitored or divulged.

(B) Unless otherwise provided for in this paragraph, after intercepting or recording a telephone conversation, only the superintendent, warden or a designee of the superintendent or warden or other chief administrative official or his or her designee, or law enforcement officers shall have access to that recording.

(C) The contents of an intercepted and recorded telephone conversation shall be divulged only as is necessary to safeguard the orderly operation of the facility, in response to a court order or in the prosecution or investigation of any crime.

The Appellee challenged the anticipated use of the recordings at trial based on the alleged failure of officials at the facility to follow the process and regulations outlined in the Pennsylvania Wiretap Act with respect to these recordings. The trial court granted Appellee’s suppression motion and prohibited the introduction of recordings made during Appellee’s visitation sessions at the Clinton County Correctional Facility as well as the introduction of personal belongings discovered as a result of the recordings. That court ruled that the “visit” conversations were not telephone calls and were not subject to the Wiretap exception under § 5704(14).

However, the record showed that the inmate had to sign a form that included an acknowledgement that telephone calls are subject to monitoring, recording and interception including visitation calls within the facility for face-to-face visits using a telephone to communicate with his visitors through a glass partition. The recordings in question here were from visitation calls within the facility during face-to-face visits.

The Panel ruled that the recorded telephone “visit” conversations were subject to the exception set forth in § 5704(14) of the Wiretap Act. Therefore, the Court reversed the trial court’s order suppressing the recorded conversations as well as the evidence obtained as a result of those conversations.

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