Com. v. Schaeffer

• Citation: 370 Pa.Super. 179,536 A.2d 354
• Parties: , 56 USLW 2422 COMMONWEALTH of Pennsylvania v. Paul R. SCHAEFFER, Jr., Appellant.
• Decision Date: 29 December 1987
• Court: Superior Court of Pennsylvania

Page 354

536 A.2d 354

370 Pa.Super. 179, 56 USLW 2422

COMMONWEALTH of Pennsylvania v. Paul R. SCHAEFFER, Jr., Appellant.

Superior Court of Pennsylvania.

Argued Dec. 9, 1986.

Filed Dec. 29, 1987.

[370 Pa.Super. 182] Peter T. Campana, Williamsport, for appellant.

Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before CIRILLO, President Judge, and ROWLEY, OLSZEWSKI, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY, and POPOVICH, JJ.

CIRILLO, President Judge:

This case concerns the legality of a technique of electronic surveillance known as "participant monitoring," or using a body wire to surreptitiously record a person's conversations. The issue is whether, under the Pennsylvania Constitution, the police need a search warrant based on probable cause to send a confidential informer into the home of an individual to electronically record his conversations and transmit them back to the police. We hold that article I, section 8 of our constitution, which protects the right of the people to be secure from unreasonable searches and seizures, requires a warrant based on probable cause for the electronic seizure of such communications. We therefore reverse the judgment of sentence and remand for a new trial at which the fruits of the warrantless The appellant Schaeffer was convicted of possession with intent to deliver marijuana and three counts of simple possession of controlled substances. The police had employed a confidential informant to make a controlled purchase of marijuana from Schaeffer in his home. A number of days later, they equipped the same informer with a body transmitter and sent him into the Schaeffer home to make another buy. As the transaction was occurring, the police monitored and recorded a conversation between Schaeffer and the informer indicating that Schaeffer would have additional marijuana for sale by the evening of a specified date. The day after that date, the police swore out a warrant to search Schaeffer's home, reciting as probable cause the controlled buys the informer had made and the contents of the conversation the police had overheard. The police executed the warrant and seized the drugs that formed the basis for the prosecution.

electronic surveillance of the defendant will be excluded.

In a pre-trial suppression motion and in post-trial motions, Schaeffer challenged the constitutionality of the electronic eavesdropping procedure used by the police. The trial court denied the motions, and Schaeffer appealed, alleging that the search of his home violated both the federal and state constitutions.

After Schaeffer filed his appeal, a panel of this court issued an opinion holding that neither the federal nor the state constitution forbids the warrantless electronic interception, transmittal, and recording of a person's conversations in his home where the other party to the conversations has consented to the interception. Commonwealth v. Harvey, 348 Pa.Super. 544, 502 A.2d 679 (1985); accord Commonwealth v. Rodriguez, 356 Pa.Super. 543, 515 A.2d 27 (1986); see also Commonwealth v. Frank, 357 Pa.Super. 442, 448-49, 516 A.2d 64, 68 (1986). Due to the great importance of the issue involved, we ordered this case argued before the court en banc to reexamine whether Harvey correctly interpreted the Pennsylvania Constitution as affording no protection from the warrantless electronic seizure by a secret government agent of an individual's conversations in the privacy of his home.

I

Before December 3, 1978, the effective date of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701-5727, see Act of Oct. 4, 1978, No. 164, sec. 3, 1978 Pa.Laws 831, 848, electronic eavesdropping with one party's consent, which the Harvey court found not to implicate the state constitutional right to privacy, was a second-degree misdemeanor proscribed by an amendment to Chapter 57 of the Crimes Code, which at that time was entitled "Invasion of Privacy." See Act of Dec. 27, 1974, No. 327, 1974 Pa.Laws 1007 (repealed 1978). The remainder of that chapter banned wiretapping. See Act of Dec. 6, 1972, No. 334, sec. 1, §§ 5701-5704, 1972 Pa.Laws 1482, 1568-69 (repealed 1978); accord Act of July 16, 1957, No. 411, 1957 Pa.Laws 956 (repealed 1972).

The 1978 Act, while retaining and enhancing the criminal penalties for wiretapping and other electronic interceptions of communications, see 18 Pa.C.S. § 5703, carved out limited exceptions to these general prohibitions. Most significantly, the Act for the first time in the Commonwealth's history specifically authorized law enforcement officers to engage in wiretapping and electronic surveillance, subject to a stringent procedure for showing probable cause before a superior court judge. See generally id. §§ 5708-5726. The Act exempted certain other electronic surveillance techniques from these strictures. The technique used in this case is treated in subsection 5704(2):

§ 5704. Exceptions to prohibition on interception and disclosure of communications

It shall not be unlawful under this chapter for:

....

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a (i) such officer or person is a party to the communication; or

wire or oral communication involving suspected criminal activities where:

(ii) one of the parties to the communication has given prior consent to such interception....

Id. § 5704(2); cf. 18 U.S.C.A. § 2511(2)(c)-(d) (West Supp.1987).

The Harvey court, faced with the contention that 5704(2) was unconstitutional, noted the strong judicial presumption in favor of the constitutionality of a statute and held, among other things, that neither the fourth amendment to the United States Constitution nor article I, section 8 of the Pennsylvania Constitution requires a warrant for the type of electronic participant monitoring which 5704(2) permits. Accord Rodriguez; Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). Although we concur with Harvey that the fourth amendment, as interpreted by the United States Supreme Court, imposes no limits on one-party consent eavesdropping, we disagree with its ruling that under the Pennsylvania Constitution the police may engage in such monitoring in a citizen's home without first obtaining a search warrant. We need not find section 5704(2) unconstitutional to arrive at this holding, because a reasonable construction of the Act allows the conclusion that the General Assembly's exemption of participant monitoring from the prohibitions and requirements of the Act was not necessarily a legislative declaration that the practice was free of state constitutional constraints as well.

A

As a matter of federal constitutional jurisprudence, the Harvey panel's conclusion that warrantless participant monitoring does not offend the fourth amendment prohibition on unreasonable searches and seizures is correct.

The United States Supreme Court first reviewed the practice in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), where an informer equipped with an electronic recorder and transmitter surreptitiously intercepted the defendant's statements in his laundry shop and transmitted them to a federal agent. The Court held there was no fourth amendment violation because the informer had not trespassed on the defendant's premises when he entered them to converse with the defendant. The Court further found it a "farfetched analog[y] which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search and seizure." 343 U.S. at 753-54, 72 S.Ct. at 972; see also Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942) (warrantless electronic eavesdropping on telephone conversation from adjoining room not a fourth amendment violation); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (warrantless off-premises wiretapping not a fourth amendment violation).

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), however, the Court laid the "trespass" theory of fourth amendment protection to rest, holding

the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

389 U.S. at 351-52, 88 S.Ct. at 511 (citations omitted). The Court found that the monitoring and recording of a defendant's words by means of an electronic bugging device attached to the outside of a public telephone booth "violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." Id. at 353, 88 S.Ct. at 512. The Court had already determined before Katz that electronic surveillance could be a "search" and conversations could be "seized" within the meaning of that amendment. See, e.g., Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (invalidating statute In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Supreme Court got the chance to reassess On Lee in light of the advances in fourth amendment doctrine bringing electronic eavesdropping within its scope. A divided Court reaffirmed the holding of On Lee, finding that warrantless eavesdropping on conversations between a suspect and an informant by means of a radio transmitter concealed on the informant's person did not violate the fourth amendment, any more than did a secret informer's reporting a suspect's words to the police or a government agent's secretly recording them, neither of which the Court had found to violate the Constitution. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (secret...