Com. v. Beauford
| Decision Date | 18 June 1984 |
| Citation | 327 Pa.Super. 253,475 A.2d 783 |
| Parties | COMMONWEALTH of Pennsylvania v. Ida BEAUFORD, Appellant. COMMONWEALTH of Pennsylvania v. Karin GUINN, Appellant. COMMONWEALTH of Pennsylvania v. Ulysses MATTHEWS, Appellant. COMMONWEALTH of Pennsylvania v. Michael Patrick HAYES, Appellant. COMMONWEALTH of Pennsylvania v. Cynthia O. FORCINO, Appellant. COMMONWEALTH of Pennsylvania v. Raymond Joseph MURTHA, Appellant. |
| Court | Pennsylvania Superior Court |
Timothy J. Gorbey, Media, for appellants (at Nos. 3351, 247 & 1136).
John Rogers Carroll, Media, for appellants (at Nos. 1763, 1798 & 2666).
Sheldon Kovach, Asst. Dist. Atty., Media, for Com., appellee.
Before CIRILLO, JOHNSON and MONTEMURO, JJ.
These consolidated, direct appeals raise an issue of first impression in this Commonwealth: whether the utilization by law enforcement agencies of pen registers or dialed number recorders (DNRs) requires a judicial order based upon probable cause. We hold that such an order is required, and reverse the judgments of sentence.
Each of the six appellants was arrested in March of 1981 after searches of their individual residences revealed various illegal gambling paraphernalia and, as to certain appellants, controlled substances. After separate non-jury trials, each appellant was convicted of lotteries 1 and gambling. 2
Following their convictions, each appellant argued motions for a new trial, all of which were subsequently denied and sentences imposed. Notices of appeal were filed and appeals consolidated to this Court.
Viewing the evidence in the light most favorable to the verdict winner, Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), the record discloses that an investigation into alleged illegal gambling activities in Delaware County during January of 1981 revealed that Cynthia O. Forcino was operating an illegal numbers operation from her residence in Drexel Hill. On February 10, 1981, the police submitted an application to the trial court for an order permitting the installation of a DNR on Forcino's telephone line to monitor the numbers dialed from that unit. The trial court granted the application on the same day.
On February 11, 1981 a confidential informant contacted the police with information concerning Forcino's numbers operation. The informant told of personally witnessing Forcino taking bets by telephone in her residence. The informant gave a description of Forcino, her address, telephone number, and the vehicles she drove and also stated that Forcino had eight to ten numbers writers with whom she kept in contact by telephone. Through subsequent checks the police substantially corroborated the informant's tips.
Thereafter, an order was secured from the trial court for DNR monitoring of the telephone number registered to appellant Karin Guinn, as police had subsequently received information from the same informant stating that Forcino would be forwarding her incoming calls to that number.
On February 27 and March 2, 1981 the confidential informant spoke with police and informed them that Forcino had told him that she was moving her gambling operation telephone number. On each occasion the informant gave police the new number. Checks of the new telephone numbers by police revealed the names and addresses of the parties to whom these numbers were registered. Subsequent police surveillance also confirmed the presence of one of Forcino's vehicles parked outside those addresses. The authorities then secured orders for the installation of DNRs for those telephone numbers received from the informant.
As a result of monitoring the various DNRs, the evidence revealed substantial numbers of outgoing and incoming calls of short duration (one minute or less) between the hours of noon and 7:00 p.m., Monday through Saturday 3 among the various telephone lines used by Forcino and Guinn. The remaining four appellants were implicated by evidence of frequent calls made during the monitored time period from the Forcino and Guinn monitored telephones, to numbers registered to appellants. 4
Separate search warrants for each appellant were secured and executed on March 6, 1981, resulting in each appellant's arrest and the confiscation of gambling materials and, in the case of Forcino and Hayes, controlled substances. Each appellant subsequently filed motions to suppress, which were denied.
Appellants raise various challenges to the searches and seizures conducted in this case, but the issue which most concerns us is the legality of the DNR monitoring which later led to the searches of appellants' residences. Appellants contend the monitoring was both constitutionally and statutorily unlawful.
Before explaining why we accept appellants' constitutional argument, we review the statutory argument to lay the groundwork for our holding.
Appellants argue that under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701-5726, the police were required to obtain authorization from a Superior Court judge before installing DNRs. The argument turns on a distinction drawn between "pen registers" and DNRs.
The Act, in general, makes criminal the willful interception of any wire or oral communication. Id. § 5703(1).
"Intercept" is defined by the Act as the "[a]ural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device." Id. § 5702.
The Act defines "contents" as:
"Contents." As used with respect to any wire or oral communication, is any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
The Act provides conditions under which law enforcement authorities may obtain legal authorization to intercept wire or oral communications. In brief, the Act provides that such authorization may issue only from a Superior Court judge upon application from the Attorney General or a district attorney or their designees. The requirements for such an application and order are detailed at id., §§ 5708-5710, 5712.
Section 5704 of the Act enumerates certain activities which it holds not to be unlawful. Specifically, section 5704(5) states that it shall not be unlawful for "[a]ny investigative or law enforcement officer ... to use a pen register." "Pen register" is defined in section 5702 as:
A mechanical or electronic device which attaches to a particular telephone line, and which records outgoing numbers dialed by a particular telephone, but does not:
(1) monitor the contents of any communication; or
(2) record the origin of any incoming communications.
Case law has held that a pen register bears the following characteristics: 1) it is a mechanical or electronic device, 2) usually installed at a central telephone company facility on an individual telephone line, 3) which records numbers dialed by the subject telephone on a paper tape by monitoring the electrical impulses caused by dialing, and 4) records on the tape the time the numbers are dialed. See United States v. New York Telephone Company, 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977); Commonwealth v. Stehley, 235 Pa.Super. 150, 338 A.2d 686 (1975).
The Hekimian Model 110 Dialed Number Recorders utilized in the instant case have, in addition to the functions described in the traditional definition of pen registers above, the capability of monitoring: 1) the length of time the targeted telephone is off the hook on outgoing calls and 2) the date and length of time the targeted telephone is off the hook on incoming calls.
Appellants argue that these additional characteristics, specifically the capability of the DNRs to determine that an incoming call was completed, amount to an ability to "monitor the contents" of a communication, so that a DNR is removed from the statutory definition of a pen register. Consequently, they argue, a DNR falls under the authorization requirements of the Act.
We disagree, and find that the technical differences between a pen register and the DNRs used in this case are immaterial under the Act, as neither technically permits "[a]ural acquisition of the contents" of any communication. See United States v. New York Telephone Co., supra.
Appellants' constitutional claim is that, notwithstanding the Act, neither a pen register nor a DNR may be installed by law enforcement authorities without a judicial order based on probable cause. Since the court orders authorizing installation of the DNRs in this case indisputably were not based on records establishing probable cause, 5 appellants argue that the evidence gathered through use of the DNRs was unconstitutionally obtained. 6
The constitutional issue posed was expressly reserved in Commonwealth v. Stehley, supra, and has not heretofore been decided for this Commonwealth.
The right upon which appellants rely is recognized in both the fourth amendment to the federal constitution and article 1, § 8 of the Pennsylvania Constitution, which states:
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
Embodied in the constitutional statements of the principle, however, is a right to privacy older than either the federal or state constitution. Commonwealth v. Palms, 141 Pa.Super. 430, 15 A.2d 481 (1940). The right to be free from unreasonable searches and seizures is at the foundation of our body politic, in direct line with "the proud boast of an Englishman that his home was his castle and that as long as he obeyed the law, the King and his army could not enter it against his will." Id. at 439, 15 A.2d at 485.
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