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

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By Burt Rose

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I am reporting about a decision of a Panel of the Superior Court of Pennsylvania in the case of COMMONWEALTH Of Pennsylvania, Appellant v. Curtis Doval DIEGO, Appellee, No. 1989 MDA 2014, 2015 WL 3868639 (June 23, 2015). This was a Commonwealth appeal from a suppression order of Judge Scott Evans of the Court of Common Pleas of Dauphin County, Criminal Division, CP–22–CR–0001203–2013. The Dauphin County Defender represented the Appellee. The Panel was composed of Judges BENDER,JENKINS and STRASSBURGER. Judge Bender wrote the Opinion. There was no dissent.

The Commonwealth appealed from the trial court’s order granting the Appellee’s suppression motion based on violations of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq.

Following an investigation of stolen guns involving Gary Still, Detective James Moyer of the Swatara Police Department went to Mr. Still’s father’s residence following Mr. Still’s release from a hospital. Detective Moyer had determined that Mr. Still was involved in the theft of firearms from a residence. Mr. Still stated that he took numerous guns, and told the officers that he purchased heroin from Appellee. Mr. Still indicated that these transactions with the Appellee were set up on his iPad, which had been seized earlier by the police as part of the firearms investigation.

Detective Moyer testified that he asked Mr. Still to set up a heroin deal with Appellee. Mr. Still agreed, telling the officers that he would use the text messaging service on his iPad. The transaction took place in the basement of the police station and was set up with Mr. Still communicating directly with the Appellee on the iPad. Mr. Still relayed to the detectives each response from Appellee. A transaction was set up to take place. When the time came for the deal, Mr. Still was on location with the officers and pointed out Appellee. The Appellee was found to be in possession of multiple bundles of heroin and drug paraphernalia. Appellee sought suppression of these items, which was granted by the lower court.

On appeal, the Commonwealth contended that an iPad is not a “device” as that term is defined under the Wiretap Act, and that Appellee’s text messages were not “intercepted” within the meaning of the Act. This was a matter of first impression.

The Wiretap Act prohibits the interception of “any wire, electronic or oral communication.” 18 Pa.C.S. § 5703(1)-(3). “Intercept” is defined by the act as follows:

Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device. The term shall include the point at which the contents of the communication are monitored by investigative or law enforcement officers. The term shall not include the acquisition of the contents of a communication made through any electronic, mechanical or other device or telephone instrument to an investigative or law enforcement officer, or between a person and an investigative or law enforcement officer, where the investigative or law enforcement officer poses as an actual person who is the intended recipient of the communication, provided that the Attorney General, a deputy attorney general designated in writing by the Attorney General, a district attorney or an assistant district attorney designated in writing by a district attorney of the county wherein the investigative or law enforcement officer is to receive or make the communication has reviewed the facts and is satisfied that the communication involves suspected criminal activities and has given prior approval for the communication. 18 Pa.C.S. § 5702.

The Wiretap Act also defines the intercepting “electronic, mechanical or other device” as:

Any device or apparatus, including, but not limited to, an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, electronic or oral communication other than:

(1) Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business, or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business, or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.

(2) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(3) Equipment or devices used to conduct interceptions under section 5704(15) (relating to exceptions to prohibition of interception and disclosure of communications). 18 Pa.C.S. § 5702.

The Commonwealth argued that the Appellee’s iPad was not an intercepting “electronic, mechanical or other device” under the Wiretap Act because it was being used as the functional equivalent of a modern cellular phone, and telephones are explicitly excluded from the definition of what constitutes a “device” under the portion of Section 5702 cited immediately above. The Court disagreed.

Judge Bender wrote that Appellee’s iPad was not an “electronic, mechanical or other device” under Section 5702 because it was not used “to intercept a wire, electronic or oral communication.” Indeed, there was no evidence that Appellee used an iPad to communicate with Still. Moreover, Appellee’s text messaging device was the origin of the intercepted message, and not the device that purportedly intercepted that message. Gary Still’s iPad was purportedly used to intercept Appellee’s electronic communication.

However, the Commonwealth also argued that Still’s iPad was not an “electronic, mechanical or other device” within the meaning of the Wiretap Act because (again) an iPad was the functional equivalent of a telephone under the statutory definition set forth in Section 5702. The Court disagreed again. An iPad is not a telephone or telegraph instrument. The fact that an iPad or any other tablet computer can perform functions similar or identical to a modern cellular phone is not dispositive.

Pennsylvania’s Wiretap Act emphasizes the protection of privacy and provides a statutory exclusionary rule that extends to non-constitutional violations. Because of this privacy concern, the provisions of the Wiretap Act are strictly construed. Therefore,

an iPad is an “electronic, mechanical, or other device” that does not fall within the telephone exception under the Wiretap Act.

The Commonwealth also contended that the Appellee lacked a reasonable expectation of privacy in the contents of the text message conversation he had with Gary Still. This time the Court agreed. While engaging in a conversation over the telephone, a party would have no reason to believe that the other party was taping the conversation; however, any reasonably intelligent person, savvy enough to be using the Internet, would be aware of the fact that messages are received in a recorded format, by their very nature, and can be downloaded or printed by the party receiving the message. By the very act of sending a communication over the Internet, the party expressly consents to the recording of the message. Accordingly, by the act of forwarding an email or communication via the Internet, the sender expressly consents by conduct to the recording of the message.

When Appellee engaged in a text message conversation with Gary Still, he knew, or should have known, that the conversation was recorded. By the act of engaging in this means of communication, the Appellee risked that Gary Still would share the contents of that conversation with a third party. It is the sender’s knowledge that the communication will automatically be recorded, surmised from the very nature of the selected means of transmission, that is dispositive of the sender’s lack of any reasonable expectation of privacy. Thus the Appellee lacked a reasonable expectation of privacy in the text message conversation he had with Still. When an individual sends a text message, he or she should know that the recipient, and not the sender, controls the destiny of the content of that message once it is received.

However, evidence may be suppressed for violations of the Wiretap Act even if the interception does not violate a reasonable expectation of privacy. Telephone conversations are wire communications which, unlike oral communications, are protected against interception without regard to the speaker’s expectation of privacy. Section 5703 of the Wiretap Act prohibits the interception, disclosure or use of a telephone conversation as a wire communication under Section 5702, even if the telephone conversation is not also an oral communication under Section 5702. A reasonable expectation of privacy in an electronic communication is not required to seek relief for Wiretap Act violations. Thus Appellee’s lack of a reasonable expectation of privacy in his text messages with Still does not, by itself, preclude application of the statutory exclusionary rule provided by the Act. The Commonwealth argued that no interception occurred when the police monitored Still’s communication with Appellant because there was “less police intrusion” in this case than in like cases. The Court disagreed.

The definition of “intercept” in Section 5702 specifically excludes “the acquisition of the contents of a communication made through any electronic, mechanical or other device or telephone instrument to an investigative or law enforcement officer, or between a person and an investigative or law enforcement officer, where the investigative or law enforcement officer poses as an actual person who is the intended recipient of the communication.” Here, no law enforcement officer was a direct party to the communication and therefore the Section 5702 exception to the definition of “intercept” does not apply.

However, the Court concluded that no intercept occurred in this case. Gary Still, and not the police, spoke directly with Appellee by text message in the at-issue communication, and he did so voluntarily. Still was a party to the conversation, and therefore he could not be said to have intercepted it simply because he received it. Although he subsequently relayed the contents of that conversation to the police, neither his nor the police’s conduct was an “interception” under the plain meaning of the Act.

“Once an individual text message is received by the intended recipient, the communication has ended. Once the communication had ended, subsequent actions do not constitute intercepts within the meaning of the Wiretap Act. While it is true that, in most instances, the content of a text message conversation will be recorded by the recipient’s device as it is received, that circumstance is innate or inherent to the technology. It would be absurd to conclude that anytime an iPad or similar device records a text message conversation that a Wiretap Act violation occurs—for that is the equivalent of saying that everyone receiving a text message on such a device has committed a Wiretap Act violation.”

If an intercept did not occur during the transmission of the message, or at least simultaneous to the receipt of the message, then no intercept occurred at all. The record does not support the Appellee’s assertion that the police were watching Still’s iPad screen over his shoulder as the text messages were sent back and forth to Appellee. If the police had observed the text message conversation over Appellee’s shoulder as it occurred, a different legal question would be before the Court because the police may have observed the content of the text messages before Still had received them. However, because that particular factual scenario was not before the Court, it was not addressed here.

Thus no Wiretap Act violation occurred; therefore, the trial court erred when it granted suppression on that basis. Furthermore, because Appellee lacked any reasonable expectation of privacy in his text messages after they were received on Still’s iPad, there was no constitutional violation of Appellant’s privacy rights.

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