Com. v. Spangler

• Decision Date: 17 July 2002
• Citation: 570 Pa. 226,809 A.2d 234
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Yuri SPANGLER, Appellee.
• Court: Pennsylvania Supreme Court

809 A.2d 234

570 Pa. 226

COMMONWEALTH of Pennsylvania, Appellant, v. Yuri SPANGLER, Appellee.

Supreme Court of Pennsylvania.

Argued January 31, 2001.

Decided July 17, 2002.

Reargument Denied September 24, 2002.

Joseph W. Carroll, Anthony Sarcione, West Chester, for Commonwealth of Pennsylvania.

D. Michael Fisher, Mary Benefield Seiverling, Harrisburg, for Attorney General of Commonwealth of PA.

Lee Ruslander, West Chester, for Yuri Spangler.

Before: FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and SAYLOR, JJ.

OPINION

Justice SAYLOR.

The issue in this case concerns the propriety of suppressing evidence based upon the requirement in Section 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act, obligating a prosecutor to act as the custodian of certain recorded evidence.

Following his arrest for narcotics offenses, Emerson Johnson ("Johnson") identified Appellee, Yuri Spangler ("Spangler"), as an individual from whom he had purchased cocaine and agreed to cooperate with detectives from the West Chester Police Department by purchasing narcotics from Spangler while police recorded such efforts via electronic monitoring. Toward this end, the Chester County District Attorney's Office approved four separate periods of interception. Although no interceptions occurred during the initial period, January 15, 1998, through February 9, 1998, the police recorded a telephone conversation between Johnson and Spangler involving arrangements for a drug transaction on the first day of the next approved period (February 11 to March 2, 1998). Approximately one-half hour later police also recorded a conversation between Johnson and Spangler that occurred during the drug transaction. The tape recordings from these interceptions were delivered to the district attorney's office on February 24, 1998, and no additional surveillance occurred during this period. From March 12, 1998 through April 12, 1998, the police were again authorized to conduct surveillance and, again on the first day, recorded a conversation between Johnson and Spangler concerning the purchase of cocaine, delivering the recording to the district attorney's office on March 31, 1998. The final approved period for interception extended from May 26, 1998 through June 15, 1998. Three conversations were recorded on May 27, the first two concerning arrangements for a drug delivery, and the last involving the actual sale. The tape recordings of these interceptions were turned over to the district attorney's office on July 13, 1998.

Spangler was arrested and charged with narcotics offenses and criminal conspiracy arising from the transactions. Prior to trial, Spangler moved to suppress the contents of the intercepted communications, arguing, inter alia, that the Commonwealth failed to comply with the storage and custody requirements of Section 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act (the "Wiretap Act"),¹ 18 Pa.C.S. § 5704(2)(ii). In pertinent part, Section 5704(2)(ii) permits law enforcement officers to intercept wire, electronic, or oral communications without court authorization where one of the parties to the communication has given prior consent, the prosecutor has approved the interception, and provided that:

[T]he Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom....

18 Pa.C.S. § 5704(2)(ii).

At the suppression hearing, the Commonwealth presented testimony from the assistant district attorney who approved the interceptions, Norman Pine. ADA Pine explained that, after an interception, the tape recording of the surveillance is brought to the district attorney or designated assistant district attorney and is then stored in the county detective's office in a secure cabinet.² In addition, ADA Pine testified that there was a "general understanding" that the tape recordings were to be turned over to the district attorney's office "as soon as practicable," with provisions allowing the police to bring the recording to his home, leave it with the first assistant district attorney, or deliver it to the designated detective within the county detective's office if ADA Pine was unavailable.

The Commonwealth also presented testimony from the lead detective, who maintained that, while he endeavors to immediately turn over tape recordings of electronic surveillance, some delay may result from scheduling conflicts that render the designated recipients unavailable. With respect to the recordings from May 12, 1998, the detective explained that he was on vacation and later at school, and that ADA Pine was unavailable,³ resulting in a delay in turning over the tapes until July 13, 1998. The detective noted, however, that the tapes were kept in a safe at the West Chester Police Department until delivery was effected. Following the suppression hearing, the parties filed memoranda advancing their arguments with respect to the interceptions.

Relying upon the custodial obligation in Section 5704(2)(ii), the suppression court granted Spangler's motion as to all of the recordings.⁴ While acknowledging that the Wiretap Act limited the suppression of evidence for non-constitutional violations to certain enumerated grounds, the court nonetheless referenced Section 5721 of the Wiretap Act, 18 Pa.C.S. § 5721, as imposing certain restrictions upon the custody of recorded interceptions. Although this section was superceded prior to the court's decision, see Act of Feb. 18, 1998, P.L. 102, No. 19, § 11,⁵ its provisions permitted suppression where the interception was not "made in accordance with Section 5704." 18 Pa.C.S. § 5721(a)(3) (superseded). In this respect, the court explained that the Wiretap Act, including Section 5704(2)(ii)'s requirement that the prosecutor approving the interception act as custodian of the recorded evidence, is to be strictly construed. Emphasizing that the district attorney's own policy obligated police officers to forward recordings as soon as practicable, and that the West Chester Police Department was only six blocks from the district attorney's office, the court concluded that suppression was appropriate, since the failure to promptly deliver the tape recordings to the authorizing prosecutor violated the custody requirement of Section 5704. On the Commonwealth's appeal, a divided panel of the Superior Court affirmed in a memorandum decision, with the majority's reasoning tracking that of the suppression court. The dissent noted that, in the circumstance of interceptions of communications where neither party consents, upon the expiration of the order authorizing the interception, the recordings are to be immediately transferred to the judge who issued the order and sealed under his direction. See 18 Pa.C.S. § 5714(b). In contrast, the dissent emphasized that the one-party consent provision in Section 5704(2)(ii), which designates the authorizing prosecutor as the custodian of the recorded evidence, does not contain a time frame for the transfer of the recordings. The dissent found the distinction to be intentional, as surveillance involving one-party consent does not generally implicate constitutional concerns and is not scrutinized as closely as non-consensual surveillance. The dissent thus declined to infer that the General Assembly intended to impose the same requirements on one-party consensual interceptions. Agreeing with the majority that a reasonableness standard should be imposed in the absence of legislative guidance, the dissent would have concluded that it was reasonable for the police to transfer the February 11 and March 12, 1998 recordings to the district attorney's office before the expiration of the respective authorization periods, but that it was unreasonable to deliver the May 27, 1998 recordings after such expiration. This Court allowed appeal to address the Wiretap Act's limitation upon remedies for non-constitutional violations in connection with the custodial requirement in Section 5704.

Pennsylvania's Wiretap Act is generally modeled after the federal analogue, 18 U.S.C. §§ 2510-2520. See Commonwealth v. Blystone, 519 Pa. 450, 464, 549 A.2d 81, 88 (1988)

.⁶ The federal legislation authorizes states to adopt coordinate statutes permitting the interception of wire, oral, or electronic communications, see 18 U.S.C. § 2516(2), and to grant greater, but not lesser, protection than that available under federal law. See Commonwealth v. Birdseye, 543 Pa. 251, 255, 670 A.2d 1124, 1126 (1996). Pennsylvania's the Wiretap Act emphasizes the protection of privacy, see generally Commonwealth v. DeMarco, 396 Pa.Super. 357, 371, 578 A.2d 942, 949 (1990), and, consistent with such emphasis, provides a statutory exclusionary rule that extends to non-constitutional violations. See generally Michael S. Lieb, E-Mail and the Wiretap Laws: Why Congress Should Add Electronic Communication to Title III's Statutory Exclusionary Rule and Expressly Reject a "Good Faith" Exception, 34 HARV. J. ON LEGIS. 393, 422 (1997) (noting that, by covering violations that are purely statutory, the federal wiretap act, and, correspondingly, state analogues, provide greater protection than the Fourth Amendment). Because of this privacy concern, the provisions of the Wiretap Act are strictly construed. See Boettger v. Miklich, 534 Pa. 581, 586, 633 A.2d 1146, 1148 (1993).

Prior to amendment, this exclusionary rule, which was originally codified in Section 5721, the section upon which the suppression court relied, provided as follows:

(a) Motion to suppress.—Any aggrieved person in any trial, hearing, or other adversary proceeding in or before any court or other authority of this Commonwealth may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on any of the following grounds:

(1) The communication was unlawfully

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