Commonwealth v. Orzel
| Decision Date | 13 September 1984 |
| Docket Number | 933-01/1983 |
| Citation | 31 Pa. D. & C.3d 524 |
| Parties | Commonwealth v. Orzel |
| Court | Pennsylvania Commonwealth Court |
Motion for new trial and/or arrest of judgment.
Jeffrey Williams, assistant district attorney, for the Commonwealth.
Nathan Criste, for defendant.
This matter comes before the court on defendant's post-trial motions for a new trial and/or arrest of judgment after conviction by a jury on the charges of solicitation to commit simple assault and solicitation to obstruct the administration of law.
The facts of the case are as follows: On December 9, 1982, defendant, Eugene Orzel, approached Sam Grillo at Grillo's place of employment. In the course of conversation, defendant asked Grillo to " do a job for him" . Nothing further was said on the subject until December 21, 1982, when defendant called Grillo and sought to hire Grillo to beat up an individual with whom defendant was having a problem. Grillo went to the Quakertown Police Station and reported these incidents. Upon direction of an investigating officer he called Eugene Orzel from the station on December 23, 1982. During that telephone conversation, Grillo learned that defendant Orzel wanted to hire him to hurt Steven Duna, or more specifically, defendant wanted Duna's " legs broken."
Grillo arranged to meet defendant at his place of business. Grillo wore a body recorder authorized by the district attorney and supplied by the police, which recorded a conversation between defendant and Grillo in defendant's vehicle. The tape, which was admitted into evidence during the Commonwealth's case-in-chief, was the key evidence in the case. The tape established that defendant agreed to pay Grillo ($ 250) to beat up Steven Duna. The motive for this request was a civil law suit previously filed by Duna against defendant. Defendant was subsequently convicted, after a jury trial, of solicitation to commit simple assault and solicitation to obstruct the administration of law,
I. At pre-trial argument held on June 20, 1983, defendant argued that the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § § 5701- 5726, Section 5704, requires that the facts be transmitted to the district attorney in sufficient detail to permit him to determine if probable cause exists for the issuance of a consensual wiretap and that the memorandum prepared by Detective Petko was not sworn to under oath; further, that it did not on its face state probable cause to believe that criminal activity was afoot or that a surveillance of Orzel would lead to the discovery of criminal acts. The trial court found defendant's argument without merit and found that the memorandum did, on its face, set forth sufficient allegations and a reasonable basis for the use of the surveillance.
Defendant now argues that the procedure authorizing police officers or their agents to record private conversations without a warrant diminishes fundamental principles of privacy embodied in the Pennsylvania Constitution.
The Wiretapping Act, in general, makes criminal the willful interception of any wire or oral communications. Id. § 5703(1). Section 5704 of the act enumerates certain activities which it holds not to be unlawful. Specifically, Section 5704(2)(ii) states that it shall not be unlawful for 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 wire or oral communication involving suspected criminal activities where:... (ii) one of the parties to the communication has given prior consent to such interception. "
Defendant's constitutional claim is that, notwithstanding the act, there cannot be a wire interception as used in this case, without a judicial order based on probable cause. Defendant argues that the standard provided in the act [1] authorizes " gross violations of privacy by subjecting our citizenry, by making the Commonwealth an uninvited and unseen listener to whatever private conversations they care to monitor if they are suspicious of the party involved."
The right upon which defendant relies 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."
The constitutional prohibition against unreasonable searches and seizures extends beyond the home to protect the individual against unwarranted government intrusions into any area where the individual may harbor a reasonable expectation of privacy. Katz, v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, the Fourth Amendment does not protect a party to a conversation who reposes a trust or confidence in an undisclosed government agent or informant. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Hoffa, supra, at pp. 382-83. For the undisclosed agent to simultaneously record the conversation with an electronic recording device on his person is no violation of the Fourth Amendment nor it is unconstitutional to transmit the conversation to a remote place where it is overhead and recorded. See Greenspun v. Schlindwein, 574 F.Supp. 1038 (E.D. Pa. 1983). Furthermore, where one party to the conversation consents to the electronics monitoring, the conversation is admissible. See U.S. v. Mitlo, 714 F.2d 294 (3rd Circuit Ct. of Appeals, 1983) U.S. cert. den'd. 104 S.Ct. 550 and cases cited therein.
Reposing a trust or confidence in Grillo, an undisclosed informant raised no legitimate Fourth Amendment expectation of privacy right. Recording the conversation between defendant and Grillo, with the consent of Grillo, was not a Fourth Amendment violation. Without a Fourth Amendment right, there is no need for a warrant based on probable cause.
We disagree with defendant's argument that the pre-Katz decision are no longer valid because in Katz a different situation from the previous cases applied. In On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); Lopez v. United States, 373 U.S. 427 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Lewis v. United States, 385 U.S. 206, 17 L.Ed.2d 312, 87 S.Ct. 424 (1996) and Hoffa, supra, defendants knowingly made incriminating statements to agents who either transmitted them (On Lee), recorded them (Lopez), or later repeated them (Lewis and Hoffa). In Katz, the government recorded defendant's telephone conversations without his knowledge or consent nor the knowledge or consent of the other parties to the conversation. The Katz court held the government's conduct violated the privacy upon which Katz justifiably relied while using the telephone booth and thus constituted a Fourth Amendment search and seizure. In this case, one party consented to the interception, the unconsenting party had a misplaced trust in the consenting party and there was no expectation of privacy.
Defendant then argues that even though Federal Courts may hold that consensual wiretapping is permissible, the State Court, applying the Pennsylvania Constitution, should impose standards on searches and seizures higher than those required by the Federal Constitution. It cannot be doubted that Pennsylvania has the constitutional power to guard individual rights, including the right to be free from unreasonable searches and seizures, more zealously than the federal government does under the United States Constitution. Commonwealth v. Beauford, et al., No. 3351 Philadelphia, 1981, Pa.Super Ct., April 13, 1984; United States v. Geller, 560 F.Supp. 1309 (1983). Two Pennsylvania cases [2] where the court afforded greater protection against government surveillance and intrusion are Commonwealth v. Beauford, supra; Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283, cert. den'd. 444 U.S. 1032 (1979). [3] We find these cases inapposite to the case before us.
The Wiretapping Act, § 5704(5) and case law permit law enforcement officers to use a pen register without a judicial order founded on probable cause, based on the reasoning that because a telephone caller voluntarily conveyed this information to the telephone company, there was no legitimate expectation of privacy and, therefore, no restriction on third-party access to the information. In Commonwealth v. Beauford, supra, a recent Superior Court case, the court afforded special protection to the privacy interest inherent in a telephone call and held that an individual's expectation of privacy in the telephone numbers he calls is reasonable and legitimate and, therefore, pen registers are constitutionally protected against government surveillance and intrusion without probable cause.
The Bank Secrecy Act, 12 U.S.C. § 1829b(a)(1) and interpretive cases permit bank records, voluntarily conveyed to the bank and exposed to their employees in the ordinary course of business, to be used in criminal, tax and regulatory investigations. In Commonwealth v DeJohn, supra, at p. 1290, the Supreme Court stated that " to permit a police officer access to these records merely upon his request, without any judicial control as to relevancy or other traditional requirements of legal process, and to allow the evidence to be used in any...
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