Commonwealth v. Diego
119 A.3d 370
| Pa. Super. Ct. | 2015Background
- Police investigating stolen guns enlisted Gary Still, who had an iPad used to arrange heroin purchases, to set up a buy from Curtis Diego (Appellee) while at the police station.
- Still used his iPad to text Appellee from a room with several officers; Still relayed Appellee’s responses to officers (officers did not directly testify they watched the screen).
- Appellee was later arrested at the buy site and found with heroin; he moved to suppress evidence based on alleged Wiretap Act violations.
- The trial court granted suppression, finding the officers effectively intercepted the text communications.
- The Commonwealth appealed; the Superior Court reviewed statutory definitions and prior Wiretap Act precedent and reversed suppression.
Issues
| Issue | Commonwealth’s Argument | Appellee’s Argument | Held |
|---|---|---|---|
| Whether an iPad is a “device” under the Pennsylvania Wiretap Act | iPad functionally equivalent to a telephone and thus falls within the statute’s telephone exception (no device) | iPad is an electronic/mechanical device and not exempt as a telephone | iPad is an electronic/mechanical/other device and not covered by the telephone exception |
| Whether Appellee had a reasonable expectation of privacy in texts to Still | Texts recorded by recipient; sender should expect recipient can save/share — no reasonable expectation | Texts are different from chatrooms and may be deleted by recipient; Riley protects smartphone data | No reasonable expectation of privacy in texts received by third party; Riley inapplicable to this fact pattern |
| Whether police “intercepted” the text messages under the Wiretap Act | Police monitored/intercepted the exchange (suppression unwarranted because no intercept) | Police intercepted communications by directing Still and receiving messages relayed in real time | No statutory interception: Still was a voluntary party to the communication and officers did not contemporaneously intercept on the device, so Wiretap Act violation not shown |
Key Cases Cited
- Commonwealth v. Spence, 91 A.3d 44 (Pa. 2014) (telephone exclusion under Wiretap Act cannot be limited by user/subscriber status)
- Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001) (sender of electronic messages may lack reasonable expectation of privacy because recipient can record/download the message)
- Commonwealth v. Deck, 954 A.2d 603 (Pa. Super. 2008) (Wiretap Act protects wire/electronic communications without requiring a reasonable expectation of privacy)
- Commonwealth v. Cruttenden, 58 A.3d 95 (Pa. 2012) (no intercept where officer directly communicated by text while posing as accomplice)
- Commonwealth v. DeMarco, 578 A.2d 942 (Pa. Super. 1990) (caller leaving an answering-machine message consents to its recording)
- Commonwealth v. Spangler, 809 A.2d 234 (Pa. 2002) (Wiretap Act is strictly construed and modeled on federal Title III)
- Riley v. California, 134 S. Ct. 2473 (U.S. 2014) (warrant required to search digital contents of a seized smartphone)