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2018 PA Super 166
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS ANDREW KATONA :
:
Appellant : No. 1995 WDA 2014
Appeal from the Judgment of Sentence November 10, 2014
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0002549-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.
DISSENTING OPINION BY LAZARUS, J.: FILED JUNE 14, 2018
I respectfully dissent. The Majority bases its holding on what it
characterizes as a “critical distinction between the voluntary disclosure of
information versus the recording of same.” Majority Opinion, at p. 14. The
Majority finds Appellant is seeking to suppress information, not the
recordings. The Majority states: “[T]he search warrant did not rely upon
evidence derived from an unlawful wiretap, but rather the information
disclosed to the authorities, which happened to also be recorded.” Id. at 30.
The Majority, therefore, declines to reach the Appellant’s argument that the
Wiretap Act permits only a single, in-home nonconsensual intercept per order.
18 Pa.C.S. § 5704(2)(iv).
Keeping in mind that the determination of whether information
supporting the issuance of the warrant is sufficiently reliable to establish
probable cause often hinges upon whether that information is corroborated, I
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agree that the affidavit of probable cause was arguably sufficient. However,
the search warrant was “irremediably tainted,” and application of the
“independent source doctrine” is not appropriate here. As our Supreme Court
stated in Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996),
“application of the ‘independent source doctrine’ is proper only in the very
limited circumstances where the `independent source’ is truly independent
from both the tainted evidence and the police or investigative team which
engaged in the misconduct by which the tainted evidence was discovered.”
Id. at 231. Such is not the case here. Thus, in my view, an analysis of the
propriety of the wiretap order is necessary.1
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1 I also note my disagreement with the Majority’s claim that if Appellant had
a reasonable expectation of privacy in the content of what he said to the CI,
then following this argument to its logical conclusion, the Commonwealth
would be required to obtain prior judicial approval before asking the CI to
enter Appellant’s home in the first instance. Majority Opinion, at 29. This
reasoning ignores the fact that it is the face-to-face communication in one’s
home that is constitutionally and legislatively protected from surreptitious
electronic seizure. Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), as
codified in 18 Pa.C.S. § 5704(2)(iv). Cf. Commonwealth v. Rekasie, 778
A.2d 624, 632 (Pa. 2001) (“[W]hile society may certainly recognize as
reasonable a privacy expectation in a conversation carried on face-to-face
within one’s home, we are convinced society would find that an expectation
of privacy in a telephone conversation with another, in which an individual has
no reason to assume the conversation is not being simultaneously listened to
by a third party, is not objectively reasonable.”). It also ignores the fact that
the subjective intentions of the authorities are of “little relevance to the
constitutional analysis.” Commonwealth v. Dunnavant, 107 A.3d 29, 31
(Pa. 2014) (per curiam) (Saylor, J., Opinion in Support of Affirmance). As our
Supreme Court recognized, “[o]f more relevance is the occupant’s expectation
of privacy in his home (along with society’s recognition of the reasonableness
of that expectation), and the fact that the confidential informant physically
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In Pennsylvania, our Legislature has determined that although
intercepting a communication to which one is a party may not be
a violation of a constitutional privacy interest, it so threatens the
private nature of social communication as to be considered
unlawful in this Commonwealth. Recognizing this concern of the
legislature, any analysis of what constitutes an oral
communication under the Wiretap Act cannot be limited to an
analysis on strict constitutional privacy grounds. The interest
protected by the Wiretap Act is directed to a right not to
have one's words electronically seized under
circumstances which are reasonably justified.
Commonwealth v. McIvor, 670 A.2d 697, 701 (Pa. Super. 1996) (en banc)
(emphasis added). Further, when it comes to the privacy interests one holds
within the four walls of one’s home, our Supreme Court in Brion held that “an
individual can reasonably expect that his right to privacy will not be violated
. . . through the use of any electronic surveillance.” 652 A.2d at 289. “If
nowhere else, an individual must feel secure in his ability to hold a private
conversation within the four walls of his home.” Id. In Brion, our Supreme
Court acknowledged that “[i]mplicit in any discussion of an expectation that a
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entered the home to secretly [record the conversation.]”. Id. (emphasis
added). Moreover, I note that the Majority’s statement in footnote 11, that
“[i]f the communication, i.e., the actual words said, are protected in their
entirety, then it is unclear why a CI sent inside the home by direction of the
Commonwealth can repeat the words said to him absent prior judicial approval
of the entry into the home[,]” again ignores the fact that it is the face-to-face
communication in one’s home that is constitutionally and legislatively
protected. Brion, supra. See also Commonwealth v. Rekasie, 778 A.2d
624, 629 (Pa. 2001) (“In finding a constitutionally-recognized expectation of
privacy, our court’s primary focus [in Brion] was on the zone of privacy in
the home and the face-to-face conversations taking place therein.”)
(emphasis added). In fact, the Majority recognizes this distinction, stating
that “[o]bviously, playing a recorded statement of Appellant’s own words, in
his own voice, is far more probative and damaging than offering a CI’s
testimony as to the substance of the conversation.” Majority, at 31.
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communication will not be recorded, is a discussion of the right to privacy.”
652 A.2d at 288. “For the right to privacy to mean anything, it must guarantee
privacy to an individual in his own home.” Id. at 289. Brion ended the
uncertainty surrounding police use of in-home body wires by conclusively
holding that Article I, Section 8 requires police to first obtain a judicial
determination of probable cause before engaging in a unilaterally consensual
interception of oral communications in a suspect's home pursuant to section
5704(2)(ii) of the Wiretap Act. Id.
As the Majority correctly notes, the General Assembly codified our
Supreme Court’s holding in Brion at 18 Pa.C.S. § 5704(2)(iv), requiring
judicial approval if the oral interception “will take place in the home of the
nonconsenting party[.]” 18 Pa.C.S. § 5704(2)(iv). My reading of the Wiretap
Act, however, does not authorize unlimited in-home intercepts for a 30-day
period, as contemplated in the wiretap order in this case.
The order, dated May 16, 2011, authorized consensual interception and
provided for intercepted conversations “between the date of this Order and
thirty (30) days thereafter, at the residence of [Appellant] or at any other
location within Westmoreland County where [Appellant] may have an
expectation of privacy such as one would have in one’s own home.” Order,
5/16/11, at ¶ 1 (emphasis added). But this is not a section 5712 wiretap; it
is a section 5704(2)(iv) consensual intercept. The 30-day period is the
permissible length of a non-consensual interception under section 5712 of the
Wiretap Act, not section 5704. See 18 Pa.C.S. § 5712(b). Based on my
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interpretation of section 5704 of the Wiretap Act, a separate finding of
probable cause is required for each in-home intercept, and the fact that
section 5704 includes no time frame indicates to me that this is what the
statutory language contemplates.
Moreover, and contrary to the Commonwealth’s argument, the fact that
section 5704(2)(ii) does not set forth a specific length of time during which
the consent of the CI remains viable is not material to the issue here. That
it is unnecessary for law enforcement to obtain a new consent from the CI
prior to each intercept has no bearing on the requirement of probable cause
prior to an in-home intercept. Rather, the issue is whether a single order can
allow for unlimited interceptions in Appellant’s home without additional
probable cause that an incriminating conversation will occur upon each entry.
The CI is not our concern; it is the Appellant’s expectation of privacy in the
words he utters in his home that is the focus of the protection. See Katz v.
United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)
(recognizing that “activities taking place inside the home, not within the plain
view of outsiders,” are entitled to Fourth Amendment protection);
Commonwealth v. Spangler, 809 A.2d 234 (Pa. 2002) (Pennsylvania’s
Wiretap Act emphasizes protection of privacy); cf. Commonwealth v.
Rekasie, 778 A.2d 624, 632 (Pa. 2001) (finding telephone call is
“[q]ualitatively different than a face-to-face interchange occurring solely
within the home in which an individual reasonably expects privacy and can
limit the uninvited ear[.]”).
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Further, grammatically, the language in section 5704(2)(iv) speaks in
the singular:
If an oral interception otherwise authorized under this paragraph
will take place in the home of a nonconsenting party then, in
addition to the requirements of subparagraph (ii), the interception
shall not be conducted until an order is first obtained from the
president judge, or his designee who shall also be a judge, of a
court of common pleas, authorizing such in-home interception,
based upon an affidavit by an investigative or law enforcement
officer that establishes probable cause for the issuance of such an
order. No such order or affidavit shall be required where probable
cause and exigent circumstances exist. For the purposes of this
paragraph, an oral interception shall be deemed to take place in
the home of a nonconsenting party only if both the consenting and
nonconsenting parties are physically present in the home at the
time of the interception.
18 Pa.C.S. § 5704(2)(iv) (emphasis added). I agree with Appellant’s
argument that nothing in this language suggests the legislature envisioned
anything more than a single interception per court order. See Kyllo v.
United States, 533 U.S. 27, 40, (2001) (“Where ... the Government uses a
device that is not in general public use, to explore details of the home that
would previously have been unknowable without physical intrusion, the
surveillance is a `search’ and is presumptively unreasonable without a
warrant.”). Cf. Commonwealth v. Bruno, 352 A.2d 40, 45-46 (Pa. 1976)
(“Clearly, it would be unreasonable to allow the police to search the same
premises repeatedly for the same contraband on only one showing of probable
cause. Prior to each issuance of a warrant, the information presented to the
magistrate must be sufficient to persuade a reasonable person that probable
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cause exists to conduct the search.”), citing Spinelli v. United States, 393
U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964).
And finally, as our Supreme Court explained in Spangler:
Pennsylvania’s Wiretap Act emphasizes the protection of privacy,
and, consistent with such emphasis, 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.
Spangler, 809 A.2d at 237 (footnote and citations omitted). See Boettger
v. Miklich, 633 A.2d 1146, 1148 (Pa. 1993) (As Wiretap Act is statute “in
derogation of a constitutional right, the right of privacy[,]” it “must be strictly
construed.”). See also Commonwealth v. Baumhammers, 960 A.2d 59
(Pa. 2008) (because Wiretap Act infringes upon constitutional right to privacy,
its provisions are strictly construed); Commonwealth v. Frant, 146 A.3d
1254 (Pa. Super. 2016) (provisions of Wiretap Act must be strictly construed);
Commonwealth v. Mickel, 142 A.3d 870 (Pa. Super. 2016) (same).
Since the Wiretap Act requirements were not met, suppression is
mandated.2 The information gleaned is derivative evidence and is subject
to the Wiretap Act’s exclusionary rule. See 18 Pa.C.S. §§ 5721.1(b)(6),
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2 See Commonwealth v. Katze, 658 A.2d 345, 350 (Pa. 1995) (Zappala, J.,
Opinion in Support of Reversal) (“The use of the harmless error analysis with
regard to a clear violation of the Wiretapping and Electronic Surveillance
Control Act, 18 Pa.C.S. §§ 5701-5727, is repugnant to the individual right of
privacy and to the purposes underlying the Act.”).
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(c)(5).3 See Commonwealth v. Hashem, 584 A.2d 1378, 1382 (Pa. 1991)
(“Recognizing the vast potential for abuse in these extraordinary means of
inquiring into the private conversations of citizens, the General Assembly
provided within the Act itself for the remedy of suppression.”). The Wiretap
Act implicates fundamental constitutional concerns of the right to privacy and
the prohibition against unreasonable searches and seizures.
In the words of Article I, § 25 of the Constitution of Pennsylvania,
“except[ed] out of the general powers of government . . . [to]
forever remain inviolate,” is the right of the people to “be secure
in their persons, houses, papers and possessions from
unreasonable searches and seizures[.] . . .” Article I, § 8. If the
surveillance permitted by the Act is to meet the test of
reasonableness, it is essential that, at a minimum, all the
requirements directed by the Legislature be met. No violations of
any provisions of the Act will be countenanced, nor will the failure
of prosecutors to diligently follow the strict requirements of the
Act be lightly overlooked. We must remain steadfast in this
determination because there can be no greater infringement upon
an individual’s rights than by an indiscriminate and unchecked use
of electronic devices. Where, in the wisdom of the legislature,
such devices may be authorized, as in the present act, that use
will be strictly adhered to and jealously enforced; for the
alternative, no privacy at all, is unthinkable.
Id. (emphasis in original).
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3 The Wiretap Act provides for exclusion of the contents “of any wire, electronic
or oral communication, or evidence derived therefrom” where “required
pursuant to section 5704(2)(iv), the interception was made without . . .
probable cause.” 18 Pa.C.S. § 5721.1(b)(6). With respect to exclusion claims
under this subsection, the Appellant had the burden of establishing by a
preponderance of the evidence that the interception took place in his home.
Once that burden is met, the burden shifts to the Commonwealth to
“demonstrate by a preponderance of the evidence that the interception was
in accordance with section 5704(2)(iv).” 18 Pa.C.S. § 5721.1(c)(6).
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Accordingly, consistent with Brion, and consistent with a strict
construction of the limitations imposed by the Wiretap Act and its statutory
exclusionary rule, I would conclude that a separate finding of probable cause
was required for each in-home intercept under section 5704(2)(iv). Moreover,
and contrary to the Majority’s finding, I would conclude that the evidence
obtained as a result of the tainted search warrant was not subject to the
independent source doctrine. As such, I would find suppression was
warranted and would vacate the judgment of sentence and remand for a new
trial.
SHOGAN, J. joins this dissenting opinion.
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