Com. v. Melilli

• Decision Date: 13 March 1989
• Citation: 555 A.2d 1254,521 Pa. 405
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. John MELILLI, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Nicholas DeSTEFANO, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Shirley DORANZO, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. John T. DEVLIN, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Richard D. MASTRO, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Samuel M. DORAZIO, a/k/a Samuel Doranzo, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Frank R. PERRI, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Louis T. PISELLI, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 1254

555 A.2d 1254

521 Pa. 405

COMMONWEALTH of Pennsylvania, Appellee, v. John MELILLI, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v. Nicholas DeSTEFANO, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v. Shirley DORANZO, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v. John T. DEVLIN, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v. Richard D. MASTRO, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v. Samuel M. DORAZIO, a/k/a Samuel Doranzo, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v. Frank R. PERRI, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v. Louis T. PISELLI, Jr., Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 24, 1988.

Decided March 13, 1989.^*

F. Emmett Fitzpatrick, Edward Rudley, Philadelphia, Robert Gabriel, Nigel Bowman, Robert Simone, William Bowe, Richard Conn., Philadelphia, for appellant.

David M. McGlaughlin, for amicus--Committee of the Pa. Assoc. of Criminal Defense Lawyers.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Philadelphia, Catherine Marshall, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

Presented for consideration as the main issue in this appeal is whether our jurisprudence encompasses a good faith exception to the requirement of probable cause to support an application for the installation of pen registers. Because we hold that no such exception exists as yet in this Commonwealth, as based on these facts, we reverse the Superior Court and reinstate the decision of the suppression court disallowing all of the telephone evidence. We also determine as part of this analysis that the installation of pen registers must be supported by probable cause.

The criminal charges against the Appellants grew out of an investigation by the District Attorney of Philadelphia into organized illegal gambling operations. Based on confidential information, the authorities determined that the home of Appellant, Richard Mastro, was being used to conduct these operations over his phone. A court order issued at the request of the police authorized the Bell Telephone Company to install a pen register device on Mastro's line.¹ A separate confidential tip led to a second order to place a pen register on the telephone line of Appellant, Nicholas DeStefano. Information obtained through the Mastro pen register led police to suspect Jerry DiJoseph, and his line also was subjected to a pen register based on probable cause.² Subsequently, court-authorized wiretaps then were installed on all three lines in order to record criminal conversations. Each wiretap application was supported by a separate affidavit stating probable cause. These investigations culminated in the issuance of search and seizure warrants for twenty-three locations, including each Appellant's residence. Police seized physical evidence of corrupt organizations and illegal gambling. In December, 1983, Appellants were charged with gambling offenses (lotteries, gambling, pool selling and bookmaking), conspiracy, and violations of the Corrupt Organization Act. Pursuant to pre-trial motions, the suppression court ruled that the Commonwealth lacked probable cause for the installation of the pen registers and, therefore, all evidence produced thereby, including wiretapped material seized by the police, was suppressed.

In a split decision, however, the Superior Court reversed on several grounds. First, it concluded that our law required probable cause for the installation of pen registers. Second, in spite of that requirement, the Commonwealth still was entitled to a good faith exception to the exclusionary rule, thereby allowing the evidence gained from the use of the pen registers under the facts of this case. Third, even without a good faith exception to the use of the pen registers, the separate wiretaps installed on the telephones of Mastro and DeStefano were independently reliable so as to confirm the existence of probable cause as to the evidence gained from those defendants.

Adoption of the good faith exception rule by the Superior Court stemmed from a time-lag conflict over governing case law. At the time when all the pen registers were placed in 1983, the view regarding the need for a prior finding of probable cause to use pen registers was embodied in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which held that under federal law the use of a pen register was not a search under the Fourth and Fourteenth Amendments and that probable cause was not required.³ Four years later, however, our Superior Court decided Commonwealth v. Beauford, 327 Pa.Superior Ct. 253, 475 A.2d 783 (1984), allocatur denied, 508 Pa. 319, 496 A.2d 1143 (1985), which held that Article 1, section 8 of the Pennsylvania Constitution was offended by the installation of a pen register device without probable cause to support the application--a rejection of the federal standard. The Superior Court also held that Beauford applies retroactively, thereby controlling the instant case.

Drawing upon the suppression record, the Superior Court concluded further that "the orders authorizing installation and use of pen registers were not based upon findings of probable cause." The suppression judge "made no findings before issuing orders authorizing installation of the pen registers in question. The orders do not suggest that Judge Conroy ever considered whether probable cause existed." Commonwealth v. Melilli, et al, 361 Pa.Superior Ct. 429, 522 A.2d 1107, 1111 (1987).

At the urging of the Commonwealth, nevertheless, the Superior Court approved the convictions by reading into our law the good faith exception doctrine of federal law announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The Superior Court's application of that doctrine to the case under review here is based on the following rationale:

Suppression of the evidence obtained by the installation of the pen registers in the instant case cannot further the purposes of the exclusionary rule. At the time when the pen registers were installed, existing law explicitly told law enforcement officials that the use of pen registers did not constitute a search. Pursuant to the Constitution of the United States, according to Supreme Court interpretation, the use of pen registers did not require a prior showing of probable cause. See: Smith v. Maryland, supra. According to the law then in effect, therefore, law enforcement agencies were not required to obtain a court order or warrant in order to install and make use of a pen register. Nevertheless, in order to comply with telephone company requirements, police in the instant case went further than the law required and requested from a neutral magistrate an order authorizing installation of pen registers. The magistrate, who also acted pursuant to existing law, issued an order authorizing the use of pen registers without a showing of probable cause. It was not until later that the Superior Court, applying principles of state constitutional law, outlawed the use of pen registers without a prior showing of probable cause. It seems clear, therefore, that the use of pen registers by law enforcement authorities was accomplished in good faith, in accordance with statutory authority in the Commonwealth of Pennsylvania, and consistently with procedure explicitly approved by the Supreme Court of the United States. To suppress evidence obtained under these circumstances would not further any of the purposes intended to be served by the exclusionary rule. Indeed, to deprive the Commonwealth of the use of evidence obtained in good faith and in accordance with then existing law as determined by the highest court in the land, would not only fail to serve the purposes of the exclusionary rule but would tend to defeat a substantial public interest in law enforcement. Therefore, we agree with the Commonwealth that an exception to the exclusionary rule must be created which has application narrowly to situations in which law enforcement officials have acted (1) in good faith; (2) in reasonable reliance upon a procedure expressly sanctioned by existing judicial decisions (3) pursuant to authorization obtained from a neutral magistrate. Because those prerequisites have been met in the instant case, we reverse the orders suppressing the evidence obtained by the use of the pen registers.

We also reverse the order suppressing the evidence obtained through the telephone intercepts and the physical evidence seized pursuant to the search warrants. The suppression court's order was based upon its conclusion that absent the pen register evidence, the affidavits in support of the wiretap applications and search warrants were insufficient to establish probable cause. However, in light of our holding that the pen register evidence should not have been suppressed, it was unnecessary to discount that evidence when determining the existence of probable cause.

We first address the issue of whether Beauford was properly decided by the Superior Court. The Beauford court held that a pen register cannot be utilized by law enforcement authorities without an order based on probable cause, and we agree fully with that conclusion. The decision constituted an express rejection of federal law which, as already noted above in reference to Smith v. Maryland, held that the use of a pen register was not a search under the Fourth and Fourteenth Amendments. Beauford instead rested on state constitutional grounds, Article 1, § 8 of the Pennsylvania Constitution, which may be employed to guard individual privacy rights against unreasonable searches and seizures more zealously than the federal government does under the Constitution of the United States by serving as an independent source...