Superior Court of Pennsylvania Upholds Suppression Order Under Pennsylvania’s Wiretap Act

A recent appellate decision affirmed a suppression of evidence order, granted due to a governmental violation of Pennsylvania’s Wiretap Act. Pennsylvania’s Wiretap Act criminalizes the intentional interception of wire, electronic, and oral communications and prohibits the use of any communication derived from such an interception. Accordingly, Police must strictly comply with the requirements of the Wiretap Act in order for the fruits of their investigation to be admissible at trial. Any non-compliance, even when in good faith, will cause the illegal interceptions to be suppressed.

Two individuals were stopped by Pennsylvania State Police while driving on a Pennsylvania highway when the officer noticed the vehicle was speeding. After citing the driver, the officer asked the individuals about their travel plans, as the vehicle was registered out-of-state. Two conflicting stories were given by the vehicle’s occupants, arising suspicion in the officer. The officer then asked if the individuals were transporting any firearms or narcotics to which the driver nervously responded that he had a weapon. The driver then consented to a search of the vehicle, upon which thirty-five pounds of marijuana, methamphetamine, paraphernalia, a handgun, and a cellular “tracfone” were found. The men were taken into custody; upon questioning, the passenger admitted he had been approached by a man named “Steve” who agreed to purchase thirty-five pounds of marijuana from him. The tracfone would be used to keep in contact and set-up the final meeting spot.

The officer, without first obtaining a warrant, began text-messaging Steve from the phone, to which Steve suspiciously responded with questions only his cohort would know. Obtaining the answers from the passenger, the officer responded and gained Steve’s trust. When a meeting place was established as a parking lot, Pennsylvania State Police began surveillance of the lot. Spotting a vehicle with New York license plates, and information that Steve was from New York, a uniformed officer in a marked car pulled-in behind the vehicle, asked if one of the occupants were named Steve, and after receiving an affirmative response, arrested the individual. At trial, the Court suppressed the evidence obtained, citing a violation of Pennsylvania’s Wiretap Act. The Commonwealth appealed this order.

The Commonwealth raised the issue of whether the trial court erred in finding the intercepted text-messages were obtained in violation of the Wiretap Act. The Commonwealth argued that the text-messages were not intercepted illegally and that the Act was not intended to prevent misrepresentation of identity; the Commonwealth argued that when the officer began sending the text-messages, he became the intended recipient. The Commonwealth also suggested that “interception” requires the use of a separate device and no expectation of privacy existed as the text message could have been shared once received.

The Superior Court examined the Wiretap Act on its face and ruled the Commonwealth’s arguments either wrong or irrelevant. Nowhere in the Act does it state interception requires the use of a separate police device. The Court further ruled that the facts of this case differed from cases cited by the Commonwealth in their brief, in that the phone was not voluntarily given to police, nor were the interceptions explicitly consented to by any of the parties. In a concurring decision, Justice Stevens opined that the state of Pennsylvania’s Wiretap Act gives narcotics dealers an enormous advantage over law enforcement; by the time the Act has been complied with by Police, the drug-dealers have long since completed their transactions. Nevertheless, he wrote that the majority opinion of the Court was correct based on the current state of the law.

Suppression of Evidence

In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible and what is not. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.